EXECUTION COPY
_________________________________________________
e 495,000,000
TERM FACILITIES
AND REVOLVING CREDIT AGREEMENT
_________________________________________________
DATED 20 DECEMBER 2002
FOR
SGL CARBON AKTIENGESELLSCHAFT
AS THE COMPANY AND AS AN ORIGINAL BORROWER
DEUTSCHE BANK AG
AND
DRESDNER KLEINWORT XXXXXXXXXXX
AS MANDATED LEAD ARRANGERS
DEUTSCHE BANK LUXEMBOURG S.A.
AS FACILITY AGENT AND SECURITY AGENT
WITH
DRESDNER KLEINWORT XXXXXXXXXXX
AS DOCUMENTATION AGENT
XXXXX & XXXXXXXX
FRANKFURT
CONTENTS
Clause Page
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION...........................................1
SECTION 2
THE FACILITIES
2. THE FACILITIES..........................................................28
3. PURPOSE.................................................................30
4. CONDITIONS OF UTILISATION...............................................30
SECTION 3
UTILISATION
5. UTILISATION.............................................................32
6. CHANGE OF CURRENCY......................................................30
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT...............................................................38
8. COMPANY'S LIABILITIES IN RELATION TO THE LETTER OF CREDIT...............30
9. PREPAYMENT AND CANCELLATION.............................................41
SECTION 5
COSTS OF UTILISATION
10. INTEREST................................................................48
11. INTEREST PERIODS AND THE TERM...........................................51
12. CHANGES TO THE CALCULATION OF INTEREST..................................53
13. FEES....................................................................54
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. TAX GROSS UP AND INDEMNITIES............................................56
15. INCREASED COSTS.........................................................58
16. OTHER INDEMNITIES.......................................................59
17. MITIGATION BY THE LENDERS...............................................60
18. COSTS AND EXPENSES......................................................61
SECTION 7
GUARANTEE
19. GUARANTEE AND INDEMNITY.................................................62
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTATIONS.........................................................67
21. INFORMATION UNDERTAKINGS................................................77
22. FINANCIAL COVENANTS.....................................................82
23. GENERAL UNDERTAKINGS....................................................86
24. EVENTS OF DEFAULT.......................................................86
SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS.................................................102
26. CHANGES TO THE OBLIGORS................................................105
SECTION 10
THE FINANCE PARTIES
27. ROLE OF THE FACILITY AGENT, THE SECURITY AGENT, THE DOCUMENTATION AGENT,
THE MANDATED LEAD ARRANGERS AND THE COMPANY AS AGENT OF THE OBLIGORS...106
28. THE LENDERS, THE FRONTING BANKS AND THE SUFACILITY BANKS...............116
29. CONDUCT OF BUSINESS BY THE FINANCE PARTIES.............................116
30. SHARING AMONG THE LENDERS AND THE FRONTING BANKS.......................116
SECTION 11
ADMINISTRATION
31. PAYMENT MECHANICS......................................................117
32. SET-OFF................................................................120
33. NOTICES................................................................120
34. CALCULATIONS AND CERTIFICATES..........................................121
35. PARTIAL INVALIDITY.....................................................122
36. REMEDIES AND WAIVERS...................................................122
37. AMENDMENTS AND WAIVERS.................................................122
38. COUNTERPARTS...........................................................123
SECTION 12
GOVERNING LAW AND ENFORCEMENT
39. GOVERNING LAW..........................................................123
40. ENFORCEMENT............................................................123
Schedules
SCHEDULE 1...................................................................125
The Original Parties.........................................................125
SCHEDULE 2...................................................................129
Conditions Precedent and Conditions Subsequent...............................129
SCHEDULE 3...................................................................137
Requests.....................................................................137
SCHEDULE 5...................................................................142
Form of Transfer Certificates................................................142
SCHEDULE 6...................................................................146
Form of Accession Letter.....................................................146
SCHEDULE 7...................................................................148
Form of Compliance Certificate...............................................148
SCHEDULE 8...................................................................149
Existing Security............................................................149
SCHEDULE 9...................................................................150
LMA Form of Confidentiality Undertaking......................................150
SCHEDULE 10....................................................................1
Timetables.....................................................................1
SCHEDULE 11 ...................................................................3
Form of Security Trust Agreement...............................................3
SCHEDULE 12 Approved Additional Borrowers and their Allocations................4
Term Facility A................................................................4
SCHEDULE 13 ...................................................................5
Current Material Subsidiaries..................................................5
SCHEDULE 14....................................................................7
Form of the Letter of Credit...................................................7
SCHEDULE 15....................................................................8
Existing Competition Law Proceedings and Anti-Trust Lawsuits/..................8
SCHEDULE 16....................................................................1
Existing Intra-Group Loans.....................................................1
SCHEDULE 17....................................................................1
Mandatorily Discharged Indebtedness............................................1
SCHEDULE 18....................................................................1
Form of US Opinion.............................................................1
THIS AGREEMENT is dated 20 December 2002 and made between:
(1) SGL CARBON AKTIENGESELLSCHAFT, Wiesbaden (the "COMPANY");
(2) THE COMPANY and THE COMPANIES listed in Part I of Schedule 1 as original
borrowers (the "ORIGINAL BORROWERS");
(3) THE COMPANIES listed in Part I of Schedule 1 as original guarantors (the
"ORIGINAL GUARANTORS");
(4) DEUTSCHE BANK AG and DRESDNER KLEINWORT XXXXXXXXXXX, THE INVESTMENT
BANKING DIVISION OF DRESDNER BANK AG as Mandated Lead Arrangers (the
"MANDATED LEAD ARRANGERS");
(5) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as lenders
(the "ORIGINAL LENDERS");
(6) DEUTSCHE BANK LUXEMBOURG S.A. as Facility Agent and Security Agent for
the Lenders (the "FACILITY AGENT" and the "SECURITY AGENT"); and
(7) DRESDNER KLEINWORT XXXXXXXXXXX, THE INVESTMENT BANKING DIVISION OF
DRESDNER BANK AG as Documentation Agent (the "DOCUMENTATION AGENT").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a Borrower Accession Letter or a Guarantor
Accession Letter and "ACCESSION LETTERS" shall be construed accordingly.
"ACQUISITION" means:
(i) the purchase, subscription for or other acquisition of any shares
(or other securities or any interest therein) in, or incorporation
of, any other company; or
(ii) the purchase or other acquisition of any assets or (without
limitation to any of the foregoing) acquisition of any business or
interest therein.
"ADDITIONAL BORROWER" means any Approved Additional Borrower and any
other Material Subsidiary that becomes an Additional Borrower in
accordance with Clause 26 (Changes to the Obligors).
"ADDITIONAL GUARANTOR" means a company that becomes an Additional
Guarantor in accordance with Clause 26 (Changes to the Obligors).
"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.
"ALLOCATION" means:
(a) in relation to the Company, e 145,000,000; and
(b) in relation to an Approved Additional Borrower, the amount set
opposite its name under the heading "Amount of such Approved
Additional Borrower's Allocation" in Schedule 12 (Approved
Additional Borrowers and their Allocations),
being the maximum amount of Term Facility A that may be drawn down by
that particular Borrower.
"APPROVED ADDITIONAL BORROWERS" means the companies as Approved
Additional Borrowers listed in Schedule 12 (Approved Additional Borrowers
and their Allocations).
(ii)
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
"AVAILABILITY PERIOD" means:
(a) in relation to each Term Facility, the period from and including
the date of this Agreement to and including the date occurring
three (3) Months after the date of this Agreement; and
(b) in relation to the Revolving Credit Facility, the period from and
including the date of this Agreement to and including the date
occurring one (1) Month prior to the Term Facility B Repayment
Date.
"AVAILABLE COMMITMENT" means:
(a) in relation to a Facility, a Lender's Commitment under that
Facility minus the amount of its participation in the Letter of
Credit issued under Term Facility B and/or minus the Euro Amount
of its participation in any outstanding Term Facility A Loans and
Revolving Credit Facility Loans and/or minus the amount in Euros
of its participation in any amount outstanding under the Term
Facility C Loan; and
(b) in relation to any proposed Utilisation, the difference under (a)
above adjusted as follows:
(i) by subtracting therefrom the amount of its participation in
any Loans (and subtracting therefrom the Euro Amount in the
case of Term Facility A and the Revolving Credit Facility)
that are due to be made or issued under that Facility on or
before the proposed Utilisation Date; and
(ii) in relation to the Revolving Credit Facility only, by adding
thereto the Euro Amount of its participation in any
Revolving Credit Facility Loans that are due to be repaid or
prepaid (or, if any Revolving Credit Facility Loan is due to
be repaid or prepaid in part, the Euro Amount of its
participation in that part) on or before the proposed
Utilisation Date.
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"AVAILABLE FACILITY" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
"BASE FINANCIAL STATEMENTS" means:
(a) the consolidated financial statements of the Group for the
financial year ended 31 December 2001 prepared by the Company and
audited by KPMG; and
(b) the unaudited consolidated 9 months interim financial statements
of 2002 of the Company.
"BORROWER" means an Original Borrower or an Additional Borrower unless it
has ceased to be a Borrower in accordance with Clause 26 (Changes to the
Obligors).
"BORROWER ACCESSION LETTER" means a document substantially in the form
set out in Part I of Schedule 6 (Form of Accession Letter).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest which a Finance Party should have received for the
period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the
current Interest Period or Term in respect of that Loan or Unpaid
Sum, had the principal amount or Unpaid Sum received been paid on
the last day of that Interest Period or Term,
exceeds:
(b) the amount which that Finance Party would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the Relevant
Interbank Market for a period starting on the Business Day
following receipt or recovery and ending on the last day of the
current Interest Period or Term.
"BUDGET" means with respect to each financial year commencing on or after
1 January 2003, the latest annual budget delivered by the Company to the
Facility Agent pursuant to Clause 21.4 (Budgets), including profit and
loss accounts, balance sheets and cash flow projections, in the agreed
form, relating to the Group.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London, Frankfurt am Main and
Luxembourg and:
(a) (in relation to any date for payment or purchase of a currency
other than Euro) the principal financial centre of the country of
that currency; or
(b) (in relation to any date for payment or purchase of Euro) any
TARGET Day.
"CASH COLLATERAL" means, in relation to the Letter of Credit or Letter of
Credit Proportion of the Letter of Credit, a cash deposit in an interest-
bearing account or accounts with the Facility Agent (or such other
financial institution reasonably acceptable to the Facility Agent) in the
name of the Company (and identified as a Cash Collateral account), that
cash deposit and account to be secured in favour of the Security Agent
and the relevant Lenders on terms and conditions acceptable to the
Facility Agent and the Security Agent.
3
"CASH COLLATERAL DOCUMENTS" means any documents, as the Facility Agent
and the Security Agent may (each acting reasonably) specify, to be
entered into in relation to the Cash Collateral.
"CASH EQUIVALENTS" has the meaning given to it in Clause 22.1 (Financial
Definitions).
"CHANGE OF CONTROL" means if any person or group of persons acting in
concert gains control of the Company or becomes a Holding Company of the
Company.
For the purposes of this definition:
(a) "CONTROL" means:
(i) the holding of more than fifty (50) per cent. of the issued
share capital of the Company; and
(ii) the power (whether by way of ownership, shares, proxy,
contract, agency or otherwise) to (A) cast, or control the
casting of, more than fifty (50) per cent. of the maximum
number of votes that might be cast at a general meeting of
the Company, (B) appoint or remove all, or the majority of,
the directors or other equivalent officers of the Company,
or (C) give directions with respect to the operating and
financial policies of the Company which the directors or
other equivalent officers thereof are obliged to comply
with; and
(b) "PERSONS ACTING IN CONCERT" comprise persons who, pursuant to an
agreement or understanding (whether formal or informal), actively
co-operate to obtain or consolidate control of an entity.
"CHARGED ASSETS" means any assets of any Obligor that are secured in
favour of the Security Agent and/or the other Finance Parties pursuant to
the Security Documents or any of them.
"CLOSING" means the date on which all the conditions precedent as set out
in Part I of Schedule 2 (Conditions Precedent and Conditions Subsequent)
are satisfied in accordance with Clause 4 (Conditions of Utilisation), or
waived.
"CLOSING DATE" means the date on which the Closing takes place.
"CODE" means the United States Internal Revenue Code of 1986 and the
regulations promulgated and rulings issued under that code.
"COMMITMENT" means a Term Facility A Commitment, a Term Facility B
Commitment, a Term Facility C Commitment or a Revolving Credit Facility
Commitment in each case as reduced or increased from time to time by any
transfer or assignment pursuant to Clause 25 (Changes to the Lenders) and
in the case of a Subfacility, as reduced or increased pursuant to Clause
2.2(c), and "COMMITMENTS" shall be construed accordingly.
"COMPETITION LAW LIABILITIES" means the fines imposed on the Company or
any member of the Group by any relevant authority in relation to Existing
Competition Law Proceedings as set out in Schedule 15 (Existing
Competition Law Proceedings and Anti-Trust Lawsuits).
4
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 7 (Form of Compliance Certificate).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 9
(LMA Form of Confidentiality Undertaking) or in any other form agreed
between the Company and the Facility Agent.
"DANGEROUS SUBSTANCE" means any radioactive emissions, noise and any
natural or artificial substance (in whatever form) the generation,
transportation, storage, treatment, use or disposal of which (whether
alone or in combination with any other substance) gives rise to a risk of
causing harm to man or any other living organism or damaging the
Environment or public health or welfare, including (without limitation)
any controlled, special, hazardous, toxic, radioactive or dangerous
waste.
"DEBT ISSUE" means any issue after the date of this Agreement of public
or privately placed debt securities of any member of the Group.
"DEEMED FACILITY B UTILISATION" means a Utilisation of Term Facility B
deemed to be made for all purposes of this Agreement on the day of the
Facility Agent's notification in respect of receipt of all of the
documents and other evidence listed in Part I of Schedule 2 pursuant to
Clause 4.1, such day being deemed to be the Utilisation Date in respect
of Term Facility B by way of (i) the Fronting Banks being regarded as
having issued the Existing L/Cs pursuant to a respective Utilisation
request and (ii) the Fronting Banks being entitled to fees in such
capacities as further set out in this Agreement. For the purposes of
Clause 28, the respective Term Facility B Lenders' indemnity is not
limited to the nominal amount of respective Existing L/Cs, but also
includes any interests and costs incurred in respect of the Existing L/Cs
not exceeding the Total Term Facility B Commitments.
"DEEMED FACILITY C UTILISATION" means a Utilisation Term Facility C
deemed to be made for all purposes of this Agreement on the day of the
Facility Agent's notification in respect of receipt of all of the
documents and other evidence listed in Part I of Schedule 2 pursuant to
Clause 4.1, such day being deemed to be the Utilisation Date in respect
of Term Facility C.
"DEFAULT" means an Event of Default or any event or circumstance
specified in Clause 24 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing)
be an Event of Default.
"DEFAULT MARGIN" means 4.00 per cent. per annum.
"EMPLOYEE PLAN" means an "EMPLOYEE BENEFIT PLAN" as defined in section
3(3) of ERISA, other than a Multiemployer Plan, which is maintained for,
or under which contributions are made on behalf of, employees of a US
Group Member or any ERISA Affiliate.
"ENVIRONMENT" means all, or any of, the following media: the air
(including, without limitation, the air within buildings and the air
within other natural or man-made structures above or below ground), water
(including, without limitation, ground and surface water) and land
(including, without limitation, surface and sub-surface soil).
"ENVIRONMENTAL CLAIM" means any claim by any person:
5
(a) in respect of any loss or liability suffered or incurred by that
person as a result of or in connection with any violation of
Environmental Law; or
(b) that arises as a result of or in connection with Environmental
Contamination and that could give rise to any remedy or penalty
(whether interim or final) that may be enforced or assessed by
private or public legal action or administrative order or
proceedings.
"ENVIRONMENTAL CONTAMINATION" means each of the following and their
consequences:
(a) any release, discharge, emission, leakage or spillage of any
Dangerous Substance at or from any site owned, leased, occupied or
used by any member of the Group into any part of the Environment;
or
(b) any accident, fire, explosion or sudden event at any site owned,
leased, occupied or used by any member of the Group which is
directly or indirectly caused by or attributable to any Dangerous
Substance; or
(c) any other pollution of the Environment.
"ENVIRONMENTAL LAW" means all laws (including, without limitation, common
law), regulations, directives, codes of practice, circulars, guidance
notices and the like having legal effect concerning the protection of
human health, the Environment, the conditions of the work place or the
generation, transportation, storage, treatment or disposal of Dangerous
Substances.
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation, consent
or other approval required by any Environmental Law.
"EQUITY ISSUE" means any issue of shares by any member of the Group or
any issue or grant of rights to subscribe for shares in any member of the
Group, whereby such issue or granting of rights is funded through cash
payments provided by any third party not being a member of the Group.
"ERISA" means the US Employee Retirement Income Security Act of 1974 or
any successor legislation to that Act and the regulations promulgated and
rulings issued under that Act or any such successor legislation.
"ERISA AFFILIATE" means any person that for purposes of Title I and Title
IV of ERISA and section 412 of the Code is a member of a US Group
Member's controlled group, or under common control with a US Group
Member, within the meaning of section 414(b) or (c) of the Code.
"ERISA EVENT" means:
(a) any reportable event, as defined in section 4043 of ERISA, with
respect to an Employee Plan, as to which PBGC has not by
regulation waived the requirement of section 403(a) of ERISA that
it be notified within thirty days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of
section 412 of the Code or section 302 of ERISA shall be a
reportable event for the purposes of this paragraph (a) regardless
of the issuance of any waivers in accordance with section 412(d)
of the Code) or the requirements of subsection (1) of section
403(b) of ERISA (taking into account subsection (2) of such
section) are
6
met with respect to a contributing sponsor, as defined in section
4001(a)(13) of ERISA, of an Employee Plan and an event described in
paragraph (9), (10), (11) (12 or (13) of section 4043(c) of ERISA is
reasonably expected to occur with respect to such Employee Plan
within the following 30 days;
(b) the filing under section 4041(c) of ERISA of a notice of intent to
terminate any Employee Plan or the termination of any Employee
Plan under section 4041(c) of ERISA;
(c) the institution of proceedings under section 4042 of ERISA by the
PBGC for the termination of, or the appointment of a trustee to
administer, any Employee Plan;
(d) the failure to make a required contribution to any Employee Plan
that would result in the imposition of an Encumbrance under
section 412 of the Code or section 302 of ERISA; and
(e) an engagement in a non-exempt prohibited transaction within the
meaning of section 4795 of the Code or section 406 of ERISA which
upon the occurrence of any of the events described in paragraphs
(a) to (c) (inclusive) above could reasonably be expected to have
a Material Adverse Effect.
"EURIBOR" means, in relation to any Loans in Euros:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the period of that Loan) the
arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Facility Agent at its request quoted by
the Reference Banks to Prime Banks in the European interbank
market,
as of the Specified Time on the Quotation Day for the offering of
deposits in Euros for a period comparable to the Interest Period of the
relevant Loan.
"EURO AMOUNT" means, in relation to a Term Facility A Loan or a Revolving
Credit Facility Loan, the amount specified in the Utilisation Request for
that Term Facility A Loan or Revolving Credit Facility Loan (or, if the
amount requested is not denominated in Euros, that amount converted into
Euros at the Facility Agent's Spot Rate of Exchange on the date which is
in relation to a Utilisation three (3) Business Days before the
Utilisation Date or, if later, on the date the Facility Agent receives
the Utilisation Request, adjusted to reflect any repayment, prepayment,
consolidation or division or reduction of the Term Facility A Loan or
Revolving Credit Facility Loan).
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 24 (Events of Default).
"EXCESS CASH FLOW" has the meaning given to it in Clause 22.1 (Financial
Definitions).
"EXISTING COMPETITION LAW PROCEEDINGS" means the competition law related
litigation, civil lawsuits and/or other proceedings of or before any
court or agency set out in Schedule 15 (Existing Competition Law
Proceedings and Anti-Trust Lawsuits).
"EXISTING INDEBTEDNESS" means the Financial Indebtedness of the Group
outstanding on the date of this Agreement.
7
"EXISTING L/CS" means the letters of credit currently issued in favour of
the European Commission in connection with the Competition Law
Liabilities by Bayerische Hypo- und Vereinsbank AG by letter dated 12
October 2001 in the amount of e 25,600,000, by Deutsche Bank AG by letter
dated 11 October 2001 in the amount of e 29,000,000 and by Dresdner Bank
AG by letter dated 22 October 2001 in the amount of e 25,600,000.
"EXPIRY DATE" means, in relation to the Letter of Credit, the date on
which the maximum aggregate liability under it is to be reduced to zero.
"FACILITIES" means Term Facility A, Term Facility B, Term Facility C and
the Revolving Credit Facility and "FACILITY" shall be construed
accordingly.
"FACILITY AGENT'S SPOT RATE OF EXCHANGE" means the Facility Agent's spot
rate of exchange for the purchase of the relevant currency with Euros in
the London foreign exchange markets at or about 11:00 a.m. London time on
a particular day.
"FACILITY OFFICE" means the office or offices notified by a Lender or a
Fronting Bank to the Facility Agent in writing on or before the date it
becomes a Lender or a Fronting Bank (or, following that date, by not less
than five (5) Business Days' written notice) as the office or offices
through which it will perform its obligations under this Agreement.
"FEE LETTERS" means any letter or letters dated on or about the date of
this Agreement between the Mandated Lead Arrangers and the Company (or
the Facility Agent or the Security Agent or a Fronting Bank and the
Company) setting out any of the fees referred to in Clause 13 (Fees).
"FINANCE DOCUMENTS" means this Agreement, any Fee Letter, any Security
Document, any Accession Letter, any Hedging Agreement, any Transfer
Certificate, any Subfacility Document and any other document designated
as such by the Facility Agent and the Company and "FINANCE DOCUMENT"
means any of them.
"FINANCE PARTIES" means the Documentation Agent, the Facility Agent, the
Security Agent, the Mandated Lead Arrangers, a Fronting Bank, a
Subfacility Bank, and the Lenders and "FINANCE PARTY" means any of them.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) moneys borrowed and debt balances at banks;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with the Relevant
GAAP or IAS, be treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial effect
of a borrowing; however, for the
8
avoidance of doubt, this does not include any deferred payment
arrangements with trade creditors as customary in the industry;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution;
(i) any amount raised by the issue of redeemable shares;
(j) any amount of any liability under an advance or deferred purchase
agreement if one of the primary reasons behind the entry into such
agreement is to raise finance; 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.
"FINANCIAL QUARTER" means each of those periods of approximately thirteen
weeks ending on any Quarter Date in each financial year.
"FRONTING BANK" means Bayerische Hypo- und Vereinsbank AG, Deutsche Bank
AG and Dresdner Bank as issuers of the Existing L/Cs.
"FRONTING FEE" means the fronting fee determined in accordance with
Clause 13.6 (Fronting Fee) and to be paid to each Fronting Bank in
accordance with Clause 5.9 (Existing L/Cs).
"GROUP" means the Company and its Subsidiaries from time to time and
"MEMBER OF THE GROUP" shall be construed accordingly.
"GROUP STRUCTURE CHART" means a group structure chart of the Group, in
agreed form, delivered by the Company to the Facility Agent pursuant to
Clause 4 (Conditions of Utilisation).
"GUARANTOR" means an Original Guarantor or an Additional Guarantor,
unless it has ceased to be a Guarantor in accordance with Clause 26
(Changes to the Obligors).
"GUARANTOR ACCESSION LETTER" means a document substantially in the form
set out in Part II of Schedule 6 (Form of Accession Letter).
"HEDGE COUNTERPARTY" means any financial institution that is a party to
an outstanding Hedging Agreement with any member of the Group from time
to time and entitled to the same security rights as the Finance Parties
under this Agreement after accession to the Security Trust Agreement upon
notification to the Security Agent by the Company pursuant to the terms
of the Security Trust Agreement. Such Hedge Counterparty will benefit
from the Transaction Security up to its Hedge Counterparty's
Participation Amount as notified by the Company. The Security Agent will
keep updated lists of the Hedging Counterparties and their respective
Hedge Counterparty's Participation Amounts by means of the List of
Secured Parties
"HEDGE COUNTERPARTIES MAXIMUM SECURED AMOUNT" means an amount of
e 45,000,000 at maximum which will be applied from the proceeds of the
enforcement of the Transaction
9
Security pursuant to the provisions of the Security Trust Agreement in
order to discharge the claims of any Hedge Counterparty in accordance
with the respective Hedge Counterparty's Participation Amount as notified
by the Company.
"HEDGE COUNTERPARTY'S PARTICIPATION AMOUNT" has the meaning ascribed to
such term in the Security Trust Agreement.
"HEDGING AGREEMENTS" means each of the agreements entered into or to be
entered into between the members of the Group and hedge counterparties
for the purpose of hedging interest rate liabilities and currency risks
in accordance with Clause 23.28 (Hedging).
"HITCO OPTIONS" means (i) the option exercisable under a shareholders
agreement between Hitco Carbon Composites, Inc. and Xxxx X. Xxxxxxx and
(ii) the option exercisable under an option agreement between Hitco
Carbon Composites, Inc. and AMT II, each as described in more detail in
the annual report on Form 20-F filed with the Securities and Exchange
Commission on 1 July 2002.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"IAS" means International Accounting Standards generally accepted and
consistently applied.
"INFORMATION MEMORANDUM" means the document dated 5 November 2002
concerning the Company and the Group which, at the Company's request and
on its behalf, has been prepared in relation to this transaction, agreed
between the Mandated Lead Arrangers and the Company, approved by the
Company and distributed by the Mandated Lead Arrangers prior to the date
of this Agreement to the Original Lenders.
"INITIAL MARGIN" means 2.75 per cent. per annum.
"INSURANCE PROCEEDS" means the total proceeds of any insurance claim
intended to compensate for damage to any asset or interruption of
business received by any member of the Group, after deducting:
(a) any reasonable out of pocket expenses incurred by any member of
the Group in relation to such a claim;
(b) proceeds relating to third party claims, which are applied towards
meeting such claims; and
(c) Taxes paid (or reasonably estimated to be payable) by any member
of the Group in respect of such claims.
"INTELLECTUAL PROPERTY" means any and all rights and interests existing
now or in the future in any part of the world in or relating to
registered and unregistered trade marks and service marks, domain names,
patents, registered designs, utility models, trade names, business names,
titles, registered or unregistered copyrights in published and
unpublished works, unregistered designs, inventions registered or
unregistered, data base rights, know-how, any other intellectual property
rights and any applications for any of the foregoing and any goodwill
therein.
10
"INTELLECTUAL PROPERTY RIGHTS" means any Intellectual Property owned by
any member of the Group.
"INTEREST PERIOD" means, in relation to a Loan, each period determined in
accordance with Clause 11 (Interest Periods and the Term) and, in
relation to an Unpaid Sum, each period determined in accordance with
Clause 10.6 (Default Interest and Penalty).
"INTRA-GROUP LOAN" means any loan between members of the Group.
"INTRA-GROUP LOAN DOCUMENT" means any document, in the agreed form,
setting out the terms on which an Intra-Group Loan is to be made
available in accordance with the terms of this Agreement.
"ISSUING BANKS" means each of the creditors having issued the Letter of
Credit II in their capacity as Lender pursuant to their respective Term
Facility B Commitment at the time when such Letter of Credit II was
issued.
"JOINT VENTURE" means any joint venture entity, whether a company,
unincorporated firm, undertaking, association, joint venture or
partnership or any other entity.
"KFW" means Kreditanstalt fur Wiederaufbau.
"KFW INDEBTEDNESS" means at the date of this Agreement the Financial
Indebtedness of the Company outstanding to KfW under the KfW Loan
Agreement dated 30 January 2002.
"KFW LOAN AGREEMENT" means the loan agreement entered into by the Company
and KFW dated 30 January 2002 as amended from time to time.
"LENDER" means:
(a) any Original Lender; and
(b) anybank or financial institution which has become a Party in
accordance with Clause 25 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement and shall include any Lender in its capacity as a
Subfacility Bank.
"LETTER OF CREDIT " means (i) collectively, the Existing L/Cs upon Deemed
Facility B Utilisation and/or (ii) the Letter of Credit II, respectively.
"LETTER OF CREDIT II" means the letter of credit of up to an amount of
e 80,200,000, plus interest accruing thereon at 6.04 per cent. per annum
since 24 October 2001, issued or to be issued by the Issuing Banks under
Term Facility B by way of replacement of the Existing L/Cs substantially
in the form set out in Schedule 14 (Form of Letter of the Credit) or in
such other form requested by the Company which is acceptable to the
Facility Agent and the Issuing Banks.
"LETTER OF CREDIT AMOUNT" means:
(a) each sum paid, or due and payable, by an Issuing Bank or a Fronting
Bank to the beneficiary of a Letter of Credit pursuant to the terms
of the respective Letter of Credit; and
11
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from an Issuing
Bank or a Fronting Bank under the Letter of Credit), claims,
losses and expenses which that Issuing Bank or Fronting Bank
incurs or sustains under or in connection with the respective
Letter of Credit,
in each case which has not been reimbursed pursuant to Clause 8.2
(Company's Indemnity to Lenders).
"LETTER OF CREDIT COMMISSION PERIOD" means, save as otherwise provided in
this Agreement, any of those periods mentioned in Clause 13.4 (Letter of
Credit Commission).
"LETTER OF CREDIT PROPORTION" means, (i) in relation to an Issuing Bank
and/or a Term Facility B Lender in respect of the Letter of Credit II and
save as otherwise provided in this Agreement, the proportion (expressed
as a percentage) borne by that Issuing Bank's or Term Facility B Lender's
Available Commitment in respect of Term Facility B to the Available
Facility immediately prior to the issue of the Letter of Credit II and/or
(ii) in relation to a Term Facility B Lender in respect of the Existing
L/Cs and save as otherwise provided in this Agreement, the proportion
(expressed as a percentage) borne by that Term Facility B Lender's
Available Commitment in respect of Term Facility B to the Available
Facility immediately prior to the Deemed Facility B Utilisation, as
applicable in each case.
"LIBOR" means, in relation to any Loan not in Euros:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or period of that
Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Facility Agent at its request
quoted by the Reference Banks to Prime Banks in the London
interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to the
Interest Period for that Loan.
"LMA" means the Loan Market Association.
"LOAN" means a Term Facility A Loan, the Term Facility C Loan or a
Revolving Credit Facility Loan and "LOANS" shall be construed
accordingly.
"LONDON BUSINESS DAY" means a day (other than a Saturday or Sunday) on
which banks are open for general business in London.
"MAJORITY LENDERS" means:
(a) if there are no Loans or the Letter of Credit then outstanding, a
Lender or Lenders whose Commitments aggregate more than 66 2/3% of
the Total Commitments (or, if the Total Commitments have been
reduced to zero, aggregated more than 66 2/3% of the Total
Commitments immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Outstandings aggregate more than 66 2/3% of all the Outstandings.
"MANDATORY CASH COLLATERAL" means Cash Collateral that the Company must
provide in relation to interest accruing on the Letter of Credit from 24
October 2002 onwards.
12
"MANDATORY COST" means the percentage rate per annum calculated by the
Facility Agent in accordance with Schedule 4 (Mandatory Cost Formula).
"MANAGEMENT AND EMPLOYEE BENEFIT PLANS" means (i) the stock option plan,
the matching shares plan, the share bonus plan and the employee share
ownership plan, each relating to shares in the Company and each adopted
in the ordinary shareholders' meeting of the Company on 27 April 2000 and
(ii) the stock option plan relating to shares in Hitco Carbon Composites,
Inc. adopted in January 2002, each as described in more detail in the
annual report on Form 20-F filed with the Securities and Exchange
Commission in 1 July 2002.
"MANDATORILY DISCHARGED INDEBTEDNESS" means any Existing Indebtedness of
the Borrowers as identified in Schedule 17 hereto which is to be
discharged by the Borrowers from the proceeds of the first Utilisation of
Term Facility A pursuant to Clause 23.37.
"MARGIN" means the percentage rate per annum determined in accordance
with Clause 10.2 (Margin Ratchets) to Clause 10.4 (No Margin Ratchets in
Default) (inclusive).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the business, operations, property, condition (financial or
otherwise) or prospects of the Group taken as whole;
(b) the ability of any Obligor to perform and comply with its
obligations under any Finance Document;
(c) the validity, legality or enforceability of any Finance Document or
any rights or remedies of any Finance Party under any Finance
Document; or
(d) the validity, legality or enforceability of any Security created
pursuant to the Security Documents or on the priority and ranking of
any such Security.
"MATERIAL SUBSIDIARY" means:
(a) any company listed in Schedule 13 (Current Material Subsidiaries);
and
(b) any member of the Group having more than five (5) per cent. of
EBITDA and/or turnover of the Group by reference to the most recent
respective annual audited financial statements.
"MONTH" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) (subject to paragraph (c) below) if the numerically corresponding
day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to end
if there is one, or if there is not, on the immediately preceding
Business Day;
(b) if there is no numerically corresponding day in the calendar month
in which that period is to end, that period shall end on the last
Business Day in that calendar month; and
(c) for the purpose of determining the last day of an Interest Period,
if an Interest Period begins on the last Business Day of a calendar
month, that Interest Period
13
shall end on the last Business Day in the calendar month in which that
Interest Period is to end.
The above rules (a) to (c) will only apply to the last Month of any
period.
"MULTIEMPLOYER PLAN" means a "MULTIEMPLOYER PLAN" as defined in section
4001(a)(3) of ERISA, maintained or contributed to for employees of a US
Group Member or any ERISA Affiliate.
"NET PROCEEDS" means, in relation to:
(a) any disposal of an asset by a member of the Group, the total
proceeds of such disposal received by such member of the Group,
after deducting:
(i) any out of pocket costs and expenses incurred by any member
of the Group in respect of such disposal;
(ii) the unpaid balance on the date of such disposal of any
Permitted Indebtedness which must be repaid by the seller on
such disposal (together with any premium, interest or fees
required to be paid in connection therewith);
(iii) Taxes paid (or reasonably estimated to be payable) by any
member of the Group in connection with such disposal; and
(iv) in the case of a disposal effected by a member of the Group,
other than a Borrower, such provision as is reasonable for
all costs and Taxes incurred by the Group and fairly
attributable to upstreaming the cash proceeds or making any
distribution in connection with such proceeds to enable them
to reach a Borrower by such means as results in the lowest
possible liability in respect of costs and Taxes; and
(b) any Debt Issue and/or any Equity Issue by a member of the Group,
the total proceeds of such issue received by such member of the
Group, after deducting:
(i) any out of pocket costs and expenses incurred by any member
of the Group in respect of such issue; and
(ii) Taxes paid (or reasonably estimated to be payable) by any
member of the Group in connection with such issue.
"OBLIGORS" means each Borrower and each Guarantor and "OBLIGOR" shall be
construed accordingly.
"ORIGINAL OBLIGOR" means an Original Borrower or an Original Guarantor.
"OUTSTANDINGS" means, at any time, the aggregate of the amounts of the
outstanding Loans and the maximum actual and contingent liabilities of
the Fronting Banks upon a Deemed Facility B Utilisation or Issuing Banks,
as the case may be, in respect of the outstanding Letter of Credit.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the Euro as its lawful currency in
accordance with legislation of the European Union relating to European
Monetary Union.
14
"PARTY" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"PBGC" means the US Pension Benefit Guaranty Corporation, or any entity
succeeding to all or any of its functions under ERISA.
"PERMITTED ACQUISITIONS" means Acquisitions:
(a) made in the ordinary course of business; and/or
(b) where the consideration for such Acquisitions in aggregate does not
exceed e 10,000,000 (or its equivalent in another currency or
currencies) per annum; and/or
(c) where the consideration for such Acquisitions in aggregate does not
exceed 25 per cent. of the net proceeds of any Equity Issue realised
after the date of this Agreement,
PROVIDED THAT where any assets are so acquired by any Obligor such assets
are not subject to any material liabilities or to Security other than
Permitted Security.
"PERMITTED DISPOSAL" means:
(a) disposals made on customary terms in the ordinary course of
trading of the disposing entity;
(b) disposals of assets in exchange for other assets comparable or
superior as to type, value and quality;
(c) disposals between members of the Group PROVIDED THAT if the assets
are pledged or assigned in favour of the Security Agent prior to
the disposals that they remain subject to the same or equivalent
security after the disposal and FURTHER PROVIDED THAT this
disposal does not include a disposal by an Obligor or its
Subsidiary to a member of the Group which is not an Obligor or its
Subsidiary;
(d) disposals on arm's length terms of any surplus or obsolete or
worn-out assets which in the reasonable opinion of the member of
the Group making the disposal are not required for the efficient
operation of the business of the Group as a whole or by any member
of the Group;
(e) disposals of Cash Equivalents on arm's length terms;
(f) disposals of cash where such disposal is not otherwise prohibited
by the Finance Documents;
(g) disposals constituted by the creation of any Permitted Security;
(h) a sale or securitisation of receivables only to the extent that it
is entered into with the prior written consent of the Majority
Lenders;
(i) any disposal constituted by the proposed merger between SGL Carbon
S.A., Sacz, Poland and ZEW S.A., Raciborz, Poland; or
(j) disposals where the higher of the market value or consideration
receivable (when aggregated with the higher of the market value or
consideration receivable for any
15
other sale, lease, transfer or other disposal, other than any
permitted under paragraphs (a) to (i) above) does not exceed e
25,000,000 (or its equivalent in another currency or currencies) in
any financial year.
"PERMITTED GUARANTEES AND CONTINGENT LIABILITIES" means:
(a) any guarantees and indemnities required by the Finance Documents;
(b) any guarantees and indemnities given by any member of the Group in
the ordinary course of and on terms customary in its business in
respect of obligations not constituting Financial Indebtedness;
(c) any guarantees constituting Permitted Indebtedness;
(d) any guarantees issued by any member of the Group in respect of
liabilities of an Obligor, or an Affiliate of an Obligor which are
secured by any Security contemplated in Schedule 11 (Form of
Security Trust Agreement); and
(e) any guarantees and indemnities to which the Facility Agent (acting
on the instructions of the Majority Lenders) shall have given its
prior written consent.
"PERMITTED INDEBTEDNESS" means any Financial Indebtedness:
(a) arising under or permitted pursuant to the Finance Documents;
(b) to the extent that such Financial Indebtedness is subordinated on
terms acceptable to the Majority Lenders (acting reasonably);
(c) arising under any Existing Indebtedness, PROVIDED THAT such
Financial Indebtedness is repaid or prepaid in full by way of
Utilisations of Term Facility A;
(d) arising under any KfW Indebtedness, PROVIDED THAT the KfW Loan
Agreement governing such Financial Indebtedness is temporarily
replaced until Termination Date by way of Utilisation Term
Facility C by the terms of this Agreement;
(e) arising under Permitted Loans;
(f) arising under Permitted Guarantees and Contingent Liabilities;
(g) arising under and permitted by Clause 23.27 (Treasury
Transactions) and Clause 23.28 (Hedging);
(h) to which the Majority Lenders shall have given their prior written
consent;
(i) in respect of current accounts payable and accrued expenses
incurred in the ordinary course of business;
(j) incurred under leasing arrangements existing at the date of this
Agreement in an amount not exceeding a net present value of
e 5,000,000 at any time;
(k) incurred for leasing arrangements over assets in the ordinary
course of business in an amount not exceeding a net present value
of e 5,000,000 at any time
16
(l) incurred by the Company and arising under unsecured, non-
amortising term loans maturing after the Termination Date;
(m) incurred by an Obligor other than the Company, individually in an
amount not exceeding e 1,000,000 at any time and in aggregate in
an amount not exceeding e 10,000,000 at any time (which may also
be guaranteed by the Company);
(n) incurred by a member of the Group that is not an Obligor,
individually in an amount not exceeding e 5,000,000 at any time
and in aggregate in an amount not exceeding e 25,000,000 at any
time (which may also be guaranteed by the Company);
(o) subject to the provisions of this Agreement, incurred under the
Existing L/Cs;
(p) in the case of the acquisition of Fortafil, an amount not
exceeding e 10,000,000 of state subsidised Financial Indebtedness
of such company;
(q) incurred with banks or financial institutions providing lines for
commercial letters of credit and guarantees (including
confirmations and avals) for the Group and having registered the
maximum amount and tenor of such lines (with the approval of the
Company) with the Security Agent PROVIDED THAT the aggregate amount
of such lines shall not at any time be in excess of e 100,000,000
(or its equivalent in another currency or currencies), which banks
or financial institutions are at the date of this Agreement or at
any time hereafter a creditor and accede to the Security Trust
Agreement and therefore benefit from the Transaction Security as a
Secured Creditor PROVIDED THAT any such creditor shall cease to be
a Secured Creditor if:
(A) the Company so notifies the Security Agent; and
(B) such Secured Creditor confirms in writing to the Security
Agent that all claims in respect to the relevant Financial
Indebtedness incurred have been satisfied in full;
(r) incurred by SGL Carbon S.A., Nowy Sacz,, ZEW S.A., Raciborz, and
SGL Angraph SP.ZO.O., all of them Poland, in an aggregate amount of
an equivalent of e 15,000,000, granted by BNP Paribas Bank Polsk
S.A., Poland, pursuant to a bilateral credit facility based on a
certain term sheet dated 26 November 2002, providing for a facility
not maturing before 31 May 2005 on which no repayments are to be
made prior to this date;
(s) not falling within paragraphs (a) to (r) above PROVIDED THAT the
aggregate amount of Financial Indebtedness falling within this
paragraph (s) does not exceed e 10,000,000 (or its equivalent in
another currency or currencies) at any time.
"PERMITTED LOANS" means:
(a) trade credit given by any member of the Group in the ordinary
course of and on terms customary in its business;
(b) any loans to employees under benefit schemes PROVIDED THAT such
loans do not exceed e 5,000,000 at any time;
(c) any Intra-Group Loan, PROVIDED THAT:
17
(i) such Intra-Group Loan is specified in the Group Structure
Chart;
(ii) the borrower of such Intra-Group Loan is an Obligor and the
lender is another Obligor or a non-Obligor;
(iii) the borrower of such Intra-Group Loan is a non-Obligor, the
lender is an Obligor and the aggregate outstandings from such
Intra-Group Loans do not exceed e 25,000,000 at any time; or
(iv) neither the borrower nor the lender of such Intra-Group Loan
are Obligors; and
(d) any loans to which the Majority Lenders shall have given their prior
written consent.
"PERMITTED SECURITY" means:
(a) any Security listed in Schedule 8 (Existing Security) except to the
extent that the principal amount secured by that Security exceeds
the amount stated in that Schedule;
(b) 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 (but not any netting or
set-off relating to such hedging agreement in respect of cash
collateral or any other Security except as otherwise permitted
hereunder);
(c) any lien arising by operation of law and in the ordinary course of
trading other than by reason of default, PROVIDED THAT any such lien
(other than a landlord's lien (Vermieterpfandrecht) or contractor's
lien (Werkunternehmerpfandrecht) existing in respect of agreements
made prior to the date of this Agreement) is discharged within ten
(10) days after having arisen;
(d) any Security over any assets of any member of the Group (if any),
existing at the date of this Agreement, PROVIDED THAT the amount
thereby secured is not increased and further PROVIDED THAT such
Security shall be released as soon as possible but in any event
prior to or concurrently with the Closing Date;
(e) any Security over or affecting any asset acquired by a member of the
Group after the date of this Agreement if:
(i) the Security was not created in contemplation of the
acquisition of that asset by a member of the Group;
(ii) the principal amount secured has not been increased in
contemplation of or since the acquisition of that asset by a
member of the Group; and
(iii) the Security is removed or discharged within three (3) Months
of the date of acquisition of such asset;
(f) any Security over or affecting any asset acquired by any company
which becomes a member of the Group after the date of this
Agreement, where the Security is created prior to the date on which
that company becomes a member of the Group, if:
18
(i) the Security was not created in contemplation of the
acquisition of that company;
(ii) the principal amount secured has not been increased in
contemplation of or since the acquisition of that company;
and
(iii) the Security is removed or discharged within three (3)
Months of that company becoming a member of the Group;
(g) any retention of title arrangement entered into by any member of the
Group in the normal course of its trading activities on the
counterparty's standard or usual terms to the extent that such terms
are customary;
(h) any lien in favour of a bank over goods and documents of title to
goods arising in the ordinary course of documentary credit
transactions entered into in the ordinary course of trade PROVIDED
THAT such lien is discharged within fifteen (15) days of arising;
(i) any Security arising under the general business conditions of any
German credit institution (Kreditinstitut) or similar foreign
institution with whom a member of the Group maintains a banking
relationship in its ordinary course of business;
(j) any Security arising by operation of law in favour of any
governmental, state or local authority in respect of taxes,
assessments or government charges which are being contested by the
relevant member of the Group in good faith;
(k) any security (restricted to mortgages, charges to equipment or
inventory,assignment of accounts receivables, pledges of bank
accounts or assignment of intellectual property rights) securing
indebtedness not exceeding indebtedness under "Permitted
Indebtedness" para. (r) and being limited to assets located or
generated in Poland (real estate, equipment, inventory, accounts
receivables, bank accounts or intellectual property rights) of the
relevant borrowers identified in "Permitted Indebtedness" para. (r);
(l) 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 (other than any
Security permitted under paragraphs (a) to (k) above)) does not
exceed e 10,000,000 (or its equivalent in another currency or
currencies);
(m) any Security to which the Majority Lenders shall have given their
prior written consent (PROVIDED THAT the principal amount of the
indebtedness secured by such Security shall not be increased beyond
the amount expressly so permitted); and
(n) any of the Security created pursuant to the Security Documents.
"PREPAYMENT ACCOUNT" means an interest-bearing account or accounts held
with the Facility Agent (or such other financial institution reasonably
acceptable to the Facility Agent) in the name of the Company (and
identified as a Prepayment Account) and pledged to the Security Agent
into which sums are deposited in accordance with Clause 9 (Prepayment and
Cancellation) and may not be withdrawn by any member of the Group other
than as provided for in Clause 9 (Prepayment and Cancellation).
19
"PRIME BANK" means a financial institution with a rating of not lower
than A1 (Xxxxx'x Investor Services, Inc.) or A+ (Standard & Poor's
Corporation).
"QUARTER DATE" means each of 31 March, 30 June, 30 September and 31
December.
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is Euro) two (2) TARGET Days before the first day
of that period; or
(b) (for any other currency) two (2) London Business Days before the
first day of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Facility Agent in accordance with market practice in
the Relevant Interbank Market (and if quotations would normally be given
by leading banks in the Relevant Interbank Market on more than one day,
the Quotation Day will be the last of those days).
"REFERENCE BANKS" means Deutsche Bank Luxembourg S.A., Dresdner Bank AG,
Commerzbank Aktiengesellschaft and the principal offices of such other
banks or financial institutions as may from time to time be agreed
between the Company and the Facility Agent.
"REGULATIONS T, U AND X" means, respectively, Regulations T, U and X of
the Board of Governors of the Federal Reserve System of the United States
(or any successor).
"RELEVANT GAAP" means:
(a) in respect of the Company, IAS; and
(b) in respect of any other member of the Group (either alone or
including its Subsidiaries) the generally accepted accounting
principles and practices of its jurisdiction of incorporation.
"RELEVANT INTERBANK MARKET" means, in relation to Euro, the European
interbank market and, in relation to any other currency, the London
interbank market.
"RELEVANT JURISDICTION" means, in respect of any person, the jurisdiction
of the country in which such person is incorporated and, if different,
where it is resident or has its principal place of business, and each
jurisdiction or state in which it owns or leases property or otherwise
conducts its business.
"RELEVANT PERIOD" has the meaning given to it in Clause 22.1 (Financial
Definitions).
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clause 20.2 (Status) to Clause 20.8 (Governing Law and Enforcement)
(inclusive), Clause 20.11 (No Default and no Material Adverse Effect) to
Clause 20.25 (No Immunity) (inclusive), Clause 20.28 (Budgets), paragraph
(c) of Clause 20.29 (Group Structure Chart) and Clause 20.31 (ERISA and
Multiemployer Plans) to Clause 20.33 (Investment Companies) (inclusive).
"REVOLVING CREDIT FACILITY" means the revolving loan facility made
available under this Agreement as described in Clause 2.1(d).
20
"REVOLVING CREDIT FACILITY CANCELLATION DATE" means a date on which a
cancellation of the whole or part of the Available Facility for the
Revolving Credit Facility is to be made under Clause 9.10 (Voluntary
Cancellation) as specified in the relevant notice given under
Clause 9.10(a).
"REVOLVING CREDIT FACILITY COMMITMENT" means:
(a) in relation to an Original Lender, the Euro Amount set opposite
its name under the heading "Revolving Credit Facility Commitment"
in Part II of Schedule 1 (The Original Parties) and the Euro
Amount of any other Revolving Credit Facility Commitment
transferred to it under this Agreement; and
(b) in relation to any other Lender, the Euro Amount of any Revolving
Credit Facility Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it in accordance
with this Agreement.
"REVOLVING CREDIT FACILITY FINAL REPAYMENT DATE" means 31 May 2005.
"REVOLVING CREDIT FACILITY LENDER" means a Lender providing Loans in
accordance with the Revolving Credit Facility.
"REVOLVING CREDIT FACILITY LOAN" means a loan made or to be made under
the Revolving Credit Facility or the principal amount outstanding for the
time being of that loan.
"REVOLVING CREDIT FACILITY OUTSTANDINGS" means, at any time, the
aggregate of the Euro Amounts of the outstanding Revolving Credit
Facility Loans.
"ROLLOVER LOAN" means one or more Revolving Credit Facility Loans:
(a) made or to be made on the same day that a maturing Revolving Credit
Facility Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Revolving Credit Facility Loan;
(c) in the same currency as the maturing Revolving Credit Facility Loan
(unless it arose as a result of the operation of Clause 6.2
(Unavailability of Dollars)); and
(d) made or to be made for the purpose of refinancing such maturing
Revolving Credit Facility Loan.
"SCREEN RATE" means:
(a) in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of the European Union for the relevant
period; and
(b) in relation to LIBOR, the British Bankers' Association Interest
Settlement Rate for the relevant currency and period,
displayed on the appropriate page of the Reuters screen. If the agreed
page is replaced or service ceases to be available, the Facility Agent
may specify another page or service displaying the appropriate rate after
consultation with the Company and the Lenders.
21
"SECURED CREDITOR" means any bank or financial institution which is a
creditor of any member of the Group under any Permitted Indebtedness
Agreement (as defined in the Security Trust Agreement) from time to time
and entitled to the same security rights as the Finance Parties under
this Agreement after accession to the Security Trust Agreement upon
notification to the Security Agent by the Company pursuant to the terms
of the Security Trust Agreement. Such Secured Creditor will benefit from
the Transaction Security up to its Secured Creditor's Participation
Amount as notified by the Company. The Security Agent will keep updated
lists of the Secured Creditors and their respective Secured Creditor's
Participation Amounts by means of the List of Secured Parties.
"SECURED CREDITORS MAXIMUM SECURED AMOUNT means an amount of
e 100,000,000 at maximum which will be applied from the proceeds of the
enforcement of the Transaction Security pursuant to the provisions of the
Security Trust Agreement in order to discharge the claims of any Secured
Creditor in accordance with the respective Secured Creditor's
Participation Amounts as notified by the Company.
"SECURED CREDITOR'S PARTICIPATION AMOUNT" has the meaning ascribed to
such term in the Security Trust Agreement.
"SECURED PARTIES" means the Finance Parties, the Hedging Counterparties
and the Secured Creditors, each a "Secured Party".
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"SECURITY DOCUMENTS" means:
(a) each document referred to in paragraph 3 of Part I, in Part II and
in paragraph 13 of Part III of Schedule 2 (Conditions Precedent
and Conditions Subsequent);
(b) any Cash Collateral Document; and
(c) any other document entered into by any member of the Group
creating or evidencing or purporting to create or evidence
Security for all or any part of the obligations of the Obligors or
any of them under the Finance Documents or any of them.
"SECURITY TRUST AGREEMENT" means the security trust agreement,
substantially in the form set out in Schedule 11 (Form of Security Trust
Agreement) to be made between, amongst others, the Obligors and the
Secured Parties.
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 3 (Requests) given in accordance with Clause 11
(Interest Periods and the Term) in relation to Term Facility A and/or
Term Facility C.
"SPECIFIED TIME" means a time determined in accordance with Schedule 10
(Timetables).
"SUBFACILITIES" means any facilities made available by a Subfacility Bank
pursuant to and in accordance with Clause 5.10 (Utilisation of the
Subfacilities) and each not exceeding an amount of e 10,000,000 in total
at any given time and "SUBFACILITY" shall be construed accordingly.
22
"SUBFACILITY BANK" means each Revolving Credit Facility Lender which
becomes a Subfacility Bank by operation of Clause 2.2 (Subfacilities).
"SUBFACILITY DOCUMENTS" means any documents setting out the terms on
which the Subfacilities are made available as agreed between the relevant
Borrower, Subfacility Bank and approved by the Facility Agent.
"SUBSIDIARY" means, in relation to any company, corporation or
partnership, a company, corporation or partnership:
(a) a company, corporation or partnership which is "controlled",
directly or indirectly, by and therefore is a "dependent
enterprise"(abhangiges Unternehmen) of the first mentioned
company, partnership or corporation, in the case of the latter,
within the meaning of Sec. 17 Stock Corporation Act
(Aktiengesetz), or which is a "subsidiary" (Tochterunternehmen)
within the meaning of Sec. 290 Commercial Code (Handelsgesetzbuch)
of such company, corporation or partnership;
(b) a company, corporation or partnership more than half of the issued
share capital of which is beneficially owned, directly or
indirectly, by the first mentioned company, corporation or
partnership;
(c) a partnership in which:
(i) there is a participation of more than fifty (50) per cent.
in the assets of such partnership by the first mentioned
company, corporation or partnership; or
(ii) the first mentioned company, corporation or partnership has
the power to (A) cast, or control the casting of, more than
fifty (50) per cent. of the maximum number of votes that
might be cast at a general meeting, (B) appoint or remove
all, or the majority of, the directors or other equivalent
officers, or (C) give directions with respect to the
operating and financial policies which the directors or
other equivalent officers thereof are obliged to comply
with; or
(iii) in the case of a limited partnership, the general partner
has control over such limited partnership and the first
mentioned company, corporation or partnership has control of
the general partner,
and, for this purpose, a company, corporation or partnership shall be
treated as being controlled by another if that other company, corporation
or partnership is able to direct its affairs and/or to control the
composition of its board of directors or equivalent body.
"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).
23
"TERM" means, in relation to the Letter of Credit, the period from its
Utilisation Date until its Expiry Date.
"TERM FACILITIES" means Term Facility A, Term Facility B and Term
Facility C, and "TERM FACILITY" shall be construed accordingly.
"TERM FACILITY A" means a term loan facility made available under this
Agreement as described in Clause 2.1(a).
"TERM FACILITY A COMMITMENT" means:
(a) in relation to an Original Lender, the Euro Amount set opposite
its name under the heading "Term Facility A Commitment" in Part II
of Schedule 1 (The Original Parties) and the Euro Amount of any
other Term Facility A Commitment transferred to it in accordance
with this Agreement; and
(b) in relation to any other Lender, the Euro Amount of any Term
Facility A Commitment transferred to it in accordance with this
Agreement,
to the extent not cancelled, reduced or transferred by it in accordance
with this Agreement.
"TERM FACILITY A FINAL REPAYMENT DATE" means 31 May 2005.
"TERM FACILITY A LOAN" means a loan made or to be made under Term
Facility A or the principal amount outstanding for the time being of that
loan.
"TERM FACILITY A OUTSTANDINGS" means, at any time, the aggregate of the
Euro Amounts of the outstanding Term Facility A Loans.
"TERM FACILITY A REPAYMENT DATE" means each of the dates specified in the
table in Clause 7.1(a).
"TERM FACILITY A REPAYMENT INSTALMENT" means, in relation to each
Borrower of a Term Facility A Loan and each Term Facility A Repayment
Date, the amount by which the aggregate Euro Amount of all the
outstanding Term Facility A Loans drawn by that Borrower is to be reduced
on that Term Facility A Repayment Date in accordance with Clause 7.1(a).
"TERM FACILITY B" means a term facility made available under this
Agreement as described in Clause 2.1(b).
"TERM FACILITY B COMMITMENT" means:
(a) in relation to an Original Lender, the amount in Euros set
opposite its name under the heading "Term Facility B Commitment"
in Part II of Schedule 1 (The Original Parties) and the amount in
Euros of any other Term Facility B Commitment transferred to it in
accordance with this Agreement; and
(b) in relation to any other Lender, the amount in Euros of any Term
Facility B Commitment transferred to it in accordance with this
Agreement,
to the extent not cancelled, reduced or transferred by it in accordance
with this Agreement.
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"TERM FACILITY B LENDER" means a Lender having committed funds under Term
Facility B pursuant to its Term Facility B Commitment.
"TERM FACILITY B OUTSTANDINGS" means the amount of the maximum actual and
contingent liabilities of the Fronting Banks and/or the Issuing Banks in
respect of the issued Letter of Credit.
"TERM FACILITY B REPAYMENT DATE" means 31 May 2005.
"TERM FACILITY C" means a term loan facility made available under this
Agreement as described in Clause 2.1(c).
"TERM FACILITY C COMMITMENT" means:
(a) in relation to an Original Lender, the amount in Euros set
opposite its name under the heading "Term Facility C Commitment"
in Part II of Schedule 1 (The Original Parties); and
(b) in relation to any other Lender, the amount in Euros of any Term
Facility C Commitment transferred to it in accordance with this
Agreement,
to the extent not cancelled, reduced or transferred by it in accordance
with this Agreement.
"TERM FACILITY C LOAN" means the loan made or to be made under Term
Facility C or the principal amount outstanding for the time being of that
loan.
"TERM FACILITY C OUTSTANDINGS" means, at any time, the aggregate of the
amount in Euros of the outstanding Term Facility C Loan.
"TERM FACILITY C REPAYMENT DATE" means each of the dates specified in the
table in Clause 7.3(a).
"TERM FACILITY C REPAYMENT INSTALMENT" means the amount by which the
amount of the outstanding Term Facility C Loan drawn by the Company is to
be reduced on a Term Facility C Repayment Date in accordance with Clause
7.3(a).
"TERMINATION DATE" means the date on which all obligations of the
Obligors under this Agreement are discharged, except for any obligations
arising under or in connection with Term Facility C. On Termination Date,
the KfW Loan Agreement shall be re-instated and from such date the
relationship between the Company and the Lenders from time to time under
Term Facility C shall be governed by the KfW Loan Agreement only.
"TOTAL COMMITMENTS" means the aggregate of the Total Term Facility A
Commitments, the Total Term Facility B Commitments, the Total Term
Facility C Commitments and the Total Revolving Credit Facility
Commitments, being e 495,000,000 at the date of this Agreement.
"TOTAL REVOLVING CREDIT FACILITY COMMITMENTS" means the aggregate of the
Revolving Credit Facility Commitments, being e 55,000,000 (or its
equivalent) at the date of this Agreement.
"TOTAL TERM FACILITY A COMMITMENTS" means the aggregate of the Term
Facility A Commitments, being the aggregate e 335,000,000 (or its
equivalent) at the date of this Agreement.
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"TOTAL TERM FACILITY B COMMITMENTS" means the aggregate of the Term
Facility B Commitments, being up to e 85,000,000 at the date of this
Agreement.
"TOTAL TERM FACILITY C COMMITMENTS" means the aggregate of the Term
Facility C Commitments, being the aggregate e 20,000,000 (or its
equivalent) at the date of this Agreement.
"TOTAL TERM FACILITY COMMITMENTS" means the Total Term Facility A
Commitments, the Total Term Facility B Commitments and the Total Term
Facility C Commitments, and "TOTAL TERM FACILITY COMMITMENT" shall be
construed accordingly.
"TRANSACTION SECURITY" means any Security for all or any part of the
obligations of the Obligors or any of them under the Finance Documents or
any of them expressed to be created by or pursuant to, or to be evidenced
in, the Security Documents or any of them.
"TRANSFER CERTIFICATE" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificates) or any other
form agreed between the Facility Agent and the Company.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Facility Agent executes the Transfer
Certificate.
"TREASURY TRANSACTION" means any currency or interest purchase, cap or
collar agreement, forward rate agreement, interest rate or currency
future or option contract, foreign exchange or currency purchase or sale
agreement, interest rate swap, currency swap or combined interest rate
and currency swap agreement and any other similar agreement.
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor under
the Finance Documents.
"US GROUP MEMBER" means any member of the Group incorporated, resident or
with its principal place of business in the United States of America or
any state thereof or which owns or leases property or otherwise conducts
business in the United States of America or any state thereof.
"UTILISATION" means a utilisation of a Facility by way of Loan or (in the
case of the Term Facility B) Letter of Credit.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is made or to be made or the Letter of Credit is
issued or to be issued.
"UTILISATION TERM FACILITY C" means a Utilisation of Term Facility C by
way of temporarily replacing the rule of the KfW Loan Agreement in
relation to the KfW Indebtedness by the terms of this Agreement until
Termination Date.
"UTILISATION REQUEST" means a notice substantially in the form set out in
Part I of Schedule 3 (Requests).
"VALUATION DATE" means the first Business Day which falls one (1) Month
after the date on which the Letter of Credit is issued pursuant to this
Agreement and each day falling at Monthly intervals after that date.
26
"VAT" means value added tax and any other tax of a similar nature.
1.2 CONSTRUCTION
(a) Any reference in this Agreement to:
(i) a document being in the "AGREED FORM" is a reference to a document
which is either initialled as such on or before the Closing Date
for the purposes of identification by or on behalf of the Company
and the Mandated Lead Arrangers or the Facility Agent or is
executed on or before the date of this Agreement by any of the
Obligors and the Mandated Lead Arrangers or the Facility Agent or,
if not so executed or initialled, is in form and substance
reasonably satisfactory to the Facility Agent;
(ii) "ASSETS" includes present and future properties, revenues and
rights of every description;
(iii) the "EUROPEAN INTERBANK MARKET" means the interbank market for
Euro operating in Participating Member States;
(iv) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated;
(v) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(vi) a Lender's/Issuing Bank's "PARTICIPATION", in relation to the
Letter(s) of Credit, shall be construed as a reference to its
rights and obligations in relation to that Letter of Credit as are
expressly set out in this Agreement;
(vii) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust
or partnership (whether or not having separate legal personality)
or two or more of the foregoing;
(viii) a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law; but
if not having the force of law, being one with which it is
customary for persons to whom it is directed to comply) of any
governmental, intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
(ix) a provision of law is a reference to that provision as amended or
re-enacted; and
(x) unless a contrary indication appears, a time of day is a reference
to Brussels time.
(b) Section, Clause and Schedule headings are for ease of reference only.
(c) Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in
this Agreement.
(d) A Default (other than an Event of Default) is "CONTINUING" if it has not
been remedied or waived and an Event of Default is "CONTINUING" if it has
not been waived.
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1.3 CURRENCY DEFINITIONS
In this Agreement:
(a) "$" and "DOLLARS" denote the lawful currency of the United States of
America;
(b) "e" and "EURO" denote the single currency of the Participating Member
States; and
(c) "{pound-sterling}" and "STERLING" denote the lawful currency of the
United Kingdom.
SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available the
Facilities referred to below to the relevant Borrowers in relation to
each such Facility:
(a) (to the Company and, following their respective accession to this
Agreement in accordance with Clause 26 (Changes to the Obligors),
each Approved Additional Borrower, in each case in accordance with
its respective Allocation) a multicurrency term loan facility in
an aggregate amount equal to the Total Term Facility A
Commitments;
(b) (to the Company) a term facility in Euros in an aggregate amount
equal to the Total Term Facility B Commitments;
(c) (to the Company) a term facility in Euros in an aggregate amount
equal to the Total Term Facility C Commitments; and
(d) (to all the Borrowers) a multicurrency revolving credit facility
in an aggregate amount equal to the Total Revolving Credit
Facility Commitments to be made available by way of revolving
loans and, in accordance with Clause 2.2 (Subfacilities), by way
of Subfacilities.
2.2 SUBFACILITIES
(a) Subject to the terms of this Agreement, any Borrower may, at any time
during the Availability Period applicable to the Revolving Credit
Facility, by notice in writing to the Facility Agent request the
conversion of the whole or part of the Available Revolving Credit
Facility into a Subfacility with effect from the date specified in such
notice being a date not less than five (5) Business Days after the date
such notice is received by the Facility Agent (the "EFFECTIVE DATE") and
further provided that not more than three (3) Subfacilities are existing
at the same time. Any such notice shall specify:
(i) the proposed Subfacility Bank;
(ii) the proposed Borrower; and
28
(iii) the amount of the proposed Subfacility,
and shall contain the approval by the relevant Subfacility Bank of its
acting as Subfacility Bank and of the terms of the proposed Subfacility,
and the Facility Agent shall promptly notify each Lender upon receipt of
any such notice.
(b) Any Revolving Credit Facility Lender may become a Subfacility Bank;
however, no Revolving Credit Facility Lender shall be obliged to make
available Subfacilities under this Clause 2.2 (Subfacilities).
(c) In the event of the establishment of a Subfacility in accordance with
this Clause 2.2 (Subfacilities), then with effect on and from the
Effective Date, the Total Revolving Credit Facility Commitments shall be
reduced by the amount of the Subfacility, but shall automatically
increase by the amount of the relevant Subfacility upon a Subfacility
ceasing to be available to the relevant Borrower or upon the Subfacility
being cancelled in accordance with Clause 2.2(d) below.
(d) Any Borrower which has requested the establishment of a Subfacility may
at any time by notice in writing to the Facility Agent and the relevant
Subfacility Bank cancel such Subfacility in whole or in part, in which
event on the date specified in the notice, being a date not less than ten
(10) Business Days after the date such notice is received by the Facility
Agent, the Subfacility shall be cancelled and the Borrower shall
immediately repay or pay all amounts outstandings under such Subfacility.
(e) No Subfacility Bank may (other than at maturity of the relevant
Subfacility), until notice has been served under Clause 24.19
(Acceleration) or an automatic cancellation has occurred under Clause
24.20 (US Obligors) demand repayment of any monies made available by it
or withdraw prior to its original maturity any Subfacility or the right
to make Utilisations thereunder (unless an Event of Default has occurred
which has not been waived by the Majority Lenders) or demand cash cover
in respect of any guarantee or similar contingent liability by it or take
any action analogous to any of the foregoing under the Subfacility.
2.3 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
(a) The obligations of each Lender, each Subfacility Bank and each Fronting
Bank under the Finance Documents are several. Failure by a Lender, a
Subfacility Bank or a Fronting Bank to perform its obligations under the
Finance Documents does not affect the obligations of any other Party
under the Finance Documents. No Finance Party is responsible for the
obligations of any other Finance Party under the Finance Documents.
(b) The rights of each Lender, each Subfacility Bank and each Fronting Bank
under or in connection with the Finance Documents are separate and
independent rights and any debt arising under the Finance Documents or,
as the case may be, the Subfacility Documents to a Lender, a Subfacility
Bank or, as the case may be, a Fronting Bank from an Obligor shall be a
separate and independent debt. The creation of jointly held assets
(Gesamthandsvermogen) is excluded.
(c) A Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents PROVIDED THAT
if any Lender commences proceedings in respect of the Finance Documents
it shall promptly notify the other Lenders through the Facility Agent and
the Facility Agent shall notify the other Lenders accordingly.
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3. PURPOSE
3.1 PURPOSE
(a) Each Borrower shall apply all amounts borrowed by it under Term Facility
A in or towards discharging:
(i) its share of the Existing Indebtedness including the Mandatorily
Discharged Indebtedness;
(ii) (in relation to a Borrower other than the Company) any Intra-Group
Loans provided directly or indirectly by the Company to such
Borrower in order that the Company may apply such repayments
exclusively in or towards discharging its share of the Existing
Indebtedness; and/or
(iii) in respect of any remaining amounts after application in relation
to No. (i) and (ii) above, for general corporate purposes.
(b) The Company may only instruct each Issuing Bank or one or more Fronting
Banks to issue the Letter of Credit under Term Facility B in replacement
of the Existing L/Cs.
(c) Term Facility C temporarily replaces the KfW Loan Agreement until
Termination Date and the Company shall apply all amounts borrowed by it
under Term Facility C in or towards discharging its respective payment
obligations in accordance with Clause 7.3.
(d) Each Borrower shall apply all amounts borrowed by it under the Revolving
Credit Facility in or towards financing the general corporate purposes of
the Group (but not to fund:
(i) the making or declaration of any dividend, return on capital,
repayment of capital contributions or other distribution (whether
in cash or kind) or making of any other payment whatsoever in
respect of share capital whether directly or indirectly by the
Company;
(ii) the refinancing of the convertible bond issued by the Company in
2000 and due in 2005; or
(iii) any other Financial Indebtedness incurred after the date of this
Agreement).
(e) Each Borrower shall apply all amounts borrowed by it under the
Subfacilities and utilise all other banking arrangements comprised in the
Subfacilities, for the general working capital requirements or other
general corporate purposes of the Group.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of the
proceeds of, or the use of, any Utilisation pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
No Borrower may deliver a Utilisation Request unless the Facility Agent
has received all of the documents and other evidence listed in Part I of
Schedule 2 (Conditions Precedent and
30
Conditions Subsequent) in form and substance satisfactory to the Facility
Agent. The Facility Agent shall notify the Company and the Lenders
promptly upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Lenders and the Fronting Banks will only be obliged to comply with
Clause 5.4 (Lenders' and Fronting Banks' Participation) if on the date of
the Utilisation Request and on the proposed Utilisation Date:
(a) in the case of a Rollover Loan, no Event of Default (other than an
Event of Default pursuant to Clause 24.18 (b) during the time period
reserved for negotiations of the parties set out therein) is
continuing or would result from the proposed Rollover Loan and, in
the case of any other Loan or the Letter of Credit, no Default is
continuing or would result from the proposed Loan or the Letter of
Credit;
(b) the Repeating Representations made or deemed to be made by the
Company and each other Obligor are true in all material respects;
(c) no Change of Control has occurred.
4.3 MAXIMUM NUMBER OF LOANS AND LETTERS OF CREDIT
(a) A Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation:
(i) more than twelve (12) Term Facility A Loans would be outstanding; or
(ii) subject to Clause 5.9 (Existing L/Cs), more than one (1) Letter of
Credit has been issued under Term Facility B; or
(iii) more than twelve (12) Revolving Credit Facility Loans would be
outstanding.
(b) The Company may only deliver one Utilisation Request in relation to the
Term Facility C Loan and such Utilisation Request will be deemed to have
been delivered in accordance with Clause 5.1 in case of a Deemed Facility
C Utilisation.
(c) A Borrower may not request that a Term Facility Loan be divided if, as a
result of the proposed division, there would be outstanding more Loans
under that Term Facility than provided for in paragraphs (a) and (b)
above.
4.4 MANDATORILY DISCHARGED INDEBTEDNESS
Each Borrower may only deliver a Utilisation Request in respect of Term
Facility A if evidence satisfactory to the Facility Agent is provided to
the Facility Agent that the amounts borrowed by it under such Utilisation
will only be applied towards discharging Mandatorily Discharged
Indebtedness by means of requesting in the relevant Utilisation Request
payment under such Utilisation Request to be made to the relevant
creditors or otherwise. The discharge of the Mandatorily Discharged
Indebtedness shall occur through simultaneous Utilisations under Term
Facility A at one payment date only.
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SECTION 3
UTILISATION
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
A Borrower may utilise a Facility made available to it by delivery to the
Facility Agent of a duly completed Utilisation Request not later than the
Specified Time. However, in case of the Deemed Facility B Utilisation and
the Deemed Facility C Utilisation, respectively, no Utilisation Request
in respect of Term Facility B and the Term Facility C, respectively, is
required.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to that Facility;
(iii) the currency and amount of the Utilisation comply with Clause 5.3
(Currency and Amount);
(iv) the proposed Interest Period or, as the case may be, Term complies
with Clause 11 (Interest Periods and the Term);
(v) in relation to a Loan, it provides payment instructions;
(vi) if the Letter of Credit is to be issued by a Fronting Bank, the
relevant Fronting Bank has prior to the delivery of the
Utilisation Request agreed with the Majority Lenders and the
Facility Agent to act as a fronting bank in respect of that Letter
of Credit; and
(vii) in relation to the Letter of Credit, the Issuing Banks or the
relevant Fronting Banks and the Facility Agent have prior to the
delivery of the Utilisation Request approved its terms (which,
unless the Facility Agent and the Issuing Banks or the relevant
Fronting Banks agree otherwise, shall be substantially in the form
set out in Schedule 14 (Form of the Letter of Credit)), the
purpose of its issue and the identity of the beneficiary.
(b) Only one Loan may be requested in each Utilisation Request.
(c) Up to ten (10) Utilisation Requests may be delivered to the Facility
Agent in relation to the initial Utilisation and thereafter, only three
(3) Utilisation Requests may be delivered to the Facility Agent on any
one Business Day.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request in relation to:
(i) a Term Facility A Loan made to a Borrower other than SGL CARBON
LLC, the Letter of Credit under Term Facility B and the Term
Facility C Loan must be Euros; and
32
(ii) a Revolving Credit Facility Loan or a Term Facility A Loan made to
SGL CARBON LLC must be Euros or Dollars.
(b) Neither the:
(i) amount of the Letter of Credit under Term Facility B or the
proposed Term Facility C Loan; nor
(ii) Euro Amount of a proposed Term Facility A Loan or Revolving Credit
Facility Loan,
may exceed the applicable Available Commitment.
(c) The amount of a proposed Term Facility A Loan or Revolving Credit
Facility Loan must be:
(i) if the currency selected is Euros, a minimum of e 10,000,000 and
an integral multiple of e 1,000,000 for Term Facility A and a
minimum of e 5,000,000 and an integral multiple of e 1,000,000 for
the Revolving Credit Facility or in either case, if less, the
applicable Available Facility; or
(ii) if the currency selected is Dollars, a minimum of $ 10,000,000 and
an integral multiple of $ 1,000,000 for Term Facility A and a
minimum of $ 5,000,000 and an integral multiple of $ 1,000,000 for
the Revolving Credit Facility or in either case, if less, the
applicable Available Facility.
(d) The amount of the proposed Term Facility C Loan must be equal to the
Total Term Facility C Commitments.
5.4 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met:
(i) each Lender shall make its participation in each Loan available by
the Utilisation Date through its Facility Office; and
(ii) each Issuing Bank shall issue the Letter of Credit II by the
Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Term Facility A Loan
will be equal to the proportion borne by its Available Commitment to the
Available Facility immediately prior to the making of such Term Facility
A Loan.
(c) The amount of each Issuing Bank's participation in the Letter of Credit
II will be equal to the proportion borne by its Available Commitment to
the Available Facility immediately prior to the issue of the Letter of
Credit II.
(d) The amount of each Lender's participation in the Term Facility C Loan
will be equal to the proportion borne by its Available Commitment to the
Available Facility immediately prior to the making of the Term Facility C
Loan.
(e) The amount of each Lender's participation in each Revolving Credit
Facility Loan (other than under a Subfacility) will be equal to the
proportion borne by its Available
33
Commitment to the Available Facility immediately prior to the making of
such Revolving Credit Facility Loan.
(f) No Revolving Credit Facility Loan shall be made on any Utilisation Date
if, as a result, the aggregate of all Revolving Credit Facility
Outstandings on that Utilisation Date when aggregated at that time with
the amount of all Subfacilities effective at that time shall exceed the
aggregate of the Revolving Credit Facility Commitments on that
Utilisation Date.
(g) The Facility Agent shall notify each Lender the currency, the amount and
the Interest Period in relation to of each Loan or the Letter of Credit
at the Specified Time.
5.5 LETTER OF CREDIT
(a) Upon the Deemed Facility B Utilisation the Available Commitment under
Term Facility B shall be reduced accordingly. However, such Available
Commitment under Term Facility B shall be re-effective only upon the
cancellation and return of the Existing L/Cs.
(b) Each Term Facility B Lender is authorised to issue the Letter of Credit
II pursuant to this Clause 5 (Utilisation) by executing the Letter of
Credit II and ensuring that it is delivered to the beneficiary on the
Utilisation Date, thus becoming an Issuing Bank.
5.6 CANCELLATION OF A FACILITY
If, prior to the date on which it receives a Utilisation Request in
respect of a Facility, the Facility Agent receives a notice of
cancellation of the whole or part of the Available Facility for such
Facility which is to take effect under Clause 9.10 (Voluntary
Cancellation) on a date falling on or after such date, such Available
Facility shall be treated, for the purpose of Clause 5.3 (Currency and
Amount), as if it had already been reduced by the amount of such
cancellation (as specified in such notice). Nothing in this Clause 5.6
shall be treated as reducing any Lender's Available Commitment under that
Facility for the purposes of Clause 13.1 (Commitment Fee) prior to the
date on which such cancellation would otherwise take effect.
5.7 CANCELLATION OF A LENDER'S COMMITMENT
If a Lender's Commitment is cancelled under Clause 9.1 (Illegality) or
Clause 9.11 (Right of repayment and cancellation in relation to a single
Lender or Issuing Bank) after the Facility Agent has received a
Utilisation Request but before the Loan requested in that Utilisation
Request has been made, then the amount of that Loan shall be reduced by
the proportion which such Lender's Term Facility Commitment or Revolving
Credit Facility Commitment bore to the Total Term Facility Commitments or
the Total Revolving Credit Facility Commitments (as the case may be)
immediately prior to such cancellation taking effect.
5.8 CANCELLATION AND REPLACEMENT OF THE LETTER OF CREDIT
(a) The Company shall use its reasonable efforts to cause the European
Commission to return the Existing L/Cs to the Fronting Banks in exchange
against the Letter of Credit II.
(b) However, the Company shall also use its reasonable efforts to cause the
European Commission to return the Letter of Credit to the Issuing Banks
or the relevant Fronting Banks, as the case may be, or cause the European
Commission to release the Issuing Banks
34
and/or the relevant Fronting Banks, as the case may be, from their
liabilities under the Letter of Credit upon:
(i) the European Commission waiving the requirement for such Letter of
Credit to be issued; and
(ii) in any event, on the Term Facility B Repayment Date.
(c) In the event that the amount required to be covered by the Letter of
Credit is reduced by the European Commission, the Company shall
immediately notify the Facility Agent accordingly, whereupon:
(i) a new Letter of Credit shall immediately be issued for the lesser
amount required by the European Commission which shall be
effective only upon the cancellation and return of the original
Letter of Credit to the Facility Agent; and
(ii) upon such cancellation and return of the original Letter of
Credit, each Issuing Bank's Letter of Credit Proportion and/or
relevant Fronting Bank's liability under the Letter of Credit
shall be reduced pro rata.
(d) To the extent that on the occurrence of the event described in paragraph
(b) above the Company does not return to the Facility Agent the original
Letter of Credit the Company will provide Cash Collateral in an amount
equal to the amount by which the Letter of Credit may be reduced.
5.9 EXISTING L/CS
Upon the Deemed Facility B Utilisation and until such time as the
Existing L/Cs are returned to the Fronting Banks and replaced by the
Letter of Credit II, the relevant banks having issued the Existing L/Cs
will be treated as Fronting Banks and the Company shall pay the Fronting
Fee to the Fronting Banks, whereas the Term Facility B Lenders will be
entitled to the relevant remuneration pursuant to Clause 13.4.
5.10 UTILISATION OF THE SUBFACILITIES
(a) Subfacilities may comprise overdraft facilities, letters of credit, bank
guarantees, short term loans, foreign exchange facilities or, if approved
by the Facility Agent, any other facilities or financial accommodation as
may be required in connection with the business of the Group which the
Company and the relevant Subfacility Bank may agree from time to time.
(b) The rate of interest, fees and other remuneration in respect of each
Subfacility and all other terms and conditions thereof shall be
determined by agreement between the Subfacility Bank and the relevant
Borrower as set out in the relevant Subfacility Documents, and shall be
based upon the normal market rates and terms from time to time of the
Subfacility Bank taking account its fronting function.
(c) Each Borrower and each Subfacility Bank agree with and for the benefit of
each Subfacility Bank that any utilisations made under any Subfacility
provided by such Subfacility Bank shall not exceed the Subfacility.
(d) In case of any inconsistency between any term of a Subfacility Document
and of this Agreement, the terms of this Agreement shall prevail.
35
(e) Each Borrower and each Subfacility Bank shall, promptly upon request by
the Facility Agent, provide the Facility Agent with such information
relating to the operation of each Subfacility as the Facility Agent may
from time to time request. Each Borrower consents to all such information
being released to the Facility Agent and each Lender.
6. CHANGE OF CURRENCY
6.1 SELECTION OF CURRENCY
(a) A Borrower shall select the currency of a Term Facility A Loan or
Revolving Credit Facility Loan in a Utilisation Request.
(b) A Term Facility A Loan denominated in Euros may not be converted into
Dollars; however, a Borrower may deliver a Selection Notice requesting
that a Term Facility A Loan denominated in Dollars be converted to Euros,
PROVIDED THAT this procedure of converting the currency of a Term
Facility A Loan may only be conducted once and the relevant Borrower
shall at no time be entitled to request that the relevant Loan be
reconverted into Dollars.
(c) If a Borrower fails to deliver a Selection Notice in relation to a Loan
to the Facility Agent in accordance with paragraph (b) above, the Loan
will remain denominated for its next Interest Period in the same currency
in which it is then outstanding.
(d) If a Borrower delivers a Selection Notice requesting a change of currency
and the first day of the requested Interest Period is not a Business Day
for Euros, the Facility Agent shall promptly notify the Borrower and the
Lenders and the Loan will remain in Dollars (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.
6.2 UNAVAILABILITY OF DOLLARS
If before the Specified Time on any Quotation Day:
(a) the Facility Agent has received notice from a Lender that Dollars
are not readily available to it in the amount required; or
(b) a Lender notifies the Facility Agent that compliance with its
obligation to participate in a Term Facility A Loan and/or a
Revolving Credit Facility Loan in Dollars would contravene a law
or regulation applicable to it,
the Facility Agent will give notice to the relevant Borrower to that
effect by the Specified Time on that day. In this event, any Lender that
gives notice pursuant to this Clause 6.2 will be required to participate
in the Term Facility A Loan and/or the Revolving Credit Facility Loan in
Euros (in an amount equal to that Lender's proportion of the Euro Amount
of that Loan or, in respect of a Rollover Loan, an amount equal to that
Lender's proportion of the Euro Amount of the maturing Revolving Credit
Facility Loan that is due to be repaid) and its participation will be
treated as a separate Loan denominated in Euros during that Interest
Period.
36
6.3 CHANGE OF CURRENCY
(a) Subject to the provisions of Clause 6.1(b), if a Term Facility A Loan is
to be denominated in different currencies during two successive Interest
Periods:
(i) as the currency for the second Interest Period will be Euros, the
amount of the Term Facility A Loan will be equal to the Euro
Amount;
(ii) (unless the Facility Agent and the Borrower agree otherwise in
accordance with paragraph (c) below) the Borrower that has
borrowed the Term Facility A Loan shall repay it on the last day
of the first Interest Period in Dollars; and
(iii) (subject to Clause 4.2 (Further Conditions Precedent)) the Lenders
shall re-advance the Term Facility A Loan in Euros in accordance
with Clause 6.4 (Facility Agent's Calculations).
(b) If the Facility Agent and the Borrower that has borrowed the relevant
Term Facility A Loan agree, the Facility 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 an amount in Dollars; and
(ii) use the amount it purchases in or towards satisfaction of the
relevant Borrower's obligations under paragraph (a)(ii) above.
(c) If the amount purchased by the Facility Agent pursuant to paragraph
(b)(i) above is less than the amount required to be repaid by the
relevant Borrower, the Facility Agent shall promptly notify that Borrower
and that Borrower shall, on the last day of the first Interest Period,
pay an amount to the Facility Agent (in Dollars) equal to the difference.
(d) If any part of the amount paid to the Facility Agent by the Lenders
pursuant to paragraph (a)(iii) above is not needed to purchase the amount
required to be repaid by the relevant Borrower, the Facility Agent shall
promptly notify that Borrower and pay that Borrower, on the last day of
the first Interest Period, that part of that amount (in Euros).
(e) If the relevant Borrower repays the relevant Term Facility A Loan under
Clause 6.3(a)(ii) but the Lenders do not re-advance it in Euros under
Clause 6.3(a)(iii) by virtue of Clause 4.2 (Further Conditions
Precedent), the repayment shall be treated as a prepayment of the
relevant Term Facility A Loan and may not be re-borrowed. If such
repayment is made after the last day of the Availability Period
applicable to the relevant Term Facility A Loan (or, if earlier, the
first day on which the Available Facility for the relevant Term Facility
A Loan is zero), it shall satisfy the obligations of the relevant
Borrower under Clause 7.1 (Repayment of Term Facility A Loans) in inverse
chronological order.
6.4 FACILITY AGENT'S CALCULATIONS
(a) All calculations made by the Facility Agent pursuant to this Clause 6
will take into account any repayment, prepayment, consolidation or
division of Term Facility A Loans to be made on the last day of the first
Interest Period.
(b) Each Lender's participation in a Term Facility A Loan will, subject to
paragraph (a) above, be determined in accordance with Clause 5.4(b).
37
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 REPAYMENT OF TERM FACILITY A LOANS
(a) (i) The Company shall repay the first e 75,000,000 of the Term
Facility A Loans which it has drawn by repaying on each Term
Facility A Repayment Date an amount or amounts such that the
aggregate Euro Amount of all the outstanding Term Facility A Loans
drawn by the Company is reduced by an amount equal to the amount
which appears opposite the three (3) Term Facility A Repayment
Dates set out in the following table:
-------------------------------------------------
Term Facility A Repayment Date Repayment Amount
-------------------------------------------------
30 December 2003 e 25,000,000
-------------------------------------------------
30 June 2004 e 25,000,000
-------------------------------------------------
30 December 2004 e 25,000,000
-------------------------------------------------
(ii) Each Borrower which has drawn a Term Facility A Loan (including
the Company with respect to Loans over and above the first e
75,000,000 of the Term Facility A Loans referred to in (i) above)
shall repay that Loan by repaying on the Term Facility A Final
Repayment Date an amount or amounts such that the aggregate Euro
Amount of all the outstanding Term Facility A Loans is repaid in
full.
(b) If the aggregate amount of all the outstanding Term Facility A Loans
drawn by a Borrower and having an Interest Period ending on a Term
Facility A Repayment Date exceeds the Term Facility A Repayment
Instalment applicable to that Borrower on that date, then such Borrower
may, by not less than five (5) Business Days' prior notice to the
Facility Agent, select which of those Term Facility A Loans will be
wholly or partially repaid to enable the repayment required under
paragraph (a) above to occur, PROVIDED THAT:
(i) such Borrower may not make any such selection if, as a result,
more than one such Term Facility A Loan would fall to be partially
repaid; and
(ii) if such Borrower fails to give such notice, the Facility Agent
shall select the Term Facility A Loans to be wholly or partially
repaid as aforesaid.
(c) No Borrower may re-borrow any part of Term Facility A which is repaid.
7.2 SATISFACTION OF LIABILITIES IN RELATION TO TERM FACILITY B
Each Borrower shall ensure that no amount is outstanding on the Term
Facility B Repayment Date in relation to a Utilisation in the form of the
issuance of the Letter of Credit and shall ensure that the original
Letter of Credit is returned to the Facility Agent, or
38
else provide sufficient Cash Collateral to the Facility Agent to cover
such Borrower's payment obligations thereunder in full.
7.3 SATISFACTION OF LIABILITIES IN RELATION TO TERM FACILITY C
(a) The Company shall repay the Term Facility C Loan until Termination Date
only by repaying on each Term Facility C Repayment Date an amount or
amounts such that the aggregate amount in Euros of all outstandings under
the Term Facility C Loan drawn by the Company is reduced by an amount
equal to the amount which appears opposite the relevant Term Facility C
Repayment Date in the following table (after Termination Date any
repayment obligations are governed by the terms of the KfW Loan
Agreement):
-------------------------------------------------
Term Facility C Repayment Date Repayment Amount
-------------------------------------------------
30 September 2004 e 2,333,335
-------------------------------------------------
31 March 2005 e 2,333,333
-------------------------------------------------
30 September 2005 e 2,333,333
-------------------------------------------------
31 March 2006 e 2,333,333
-------------------------------------------------
30 September 2006 e 2,333,333
-------------------------------------------------
31 March 2007 e 2,333,333
-------------------------------------------------
30 September 2007 e 6,000,000
-------------------------------------------------
TOTAL e 20,000,000
-------------------------------------------------
(b) The Company may not re-borrow any part of Term Facility C which is
repaid.
7.4 REPAYMENT OF REVOLVING CREDIT FACILITY LOANS
Each Borrower shall repay each Revolving Credit Facility Loan that it has
drawn on the last day of that Revolving Credit Facility Loan's Interest
Period and no Interest Period shall fall after the Revolving Credit
Facility Final Repayment Date.
8. COMPANY'S LIABILITIES IN RELATION TO THE LETTER OF CREDIT
8.1 DEMANDS UNDER THE LETTER OF CREDIT
If a demand is made under the Letter of Credit, as the case may be, or an
Issuing Bank or Fronting Bank incurs in connection with the Letter of
Credit any other liability, cost, claim, loss or expense which is to be
reimbursed pursuant to this Agreement, the relevant Issuing Bank or
Fronting Bank shall promptly notify the Facility Agent of the amount of
such demand or such liability, cost, claim, loss or expense and the
Facility Agent shall promptly make demand upon the Company in accordance
with this Agreement and notify the Company.
39
8.2 THE COMPANY'S INDEMNITY TO ISSUING BANKS AND FRONTING BANKS
The Company shall irrevocably and unconditionally as a primary obligation
indemnify (on demand of the Facility Agent) any Issuing Bank or Fronting
Bank which has issued the Letter of Credit at the request of the Company
against:
(a) any sum paid, or due and payable, by that Issuing Bank or Fronting
Bank to the beneficiary of the Letter of Credit under or in
connection with the Letter of Credit; and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from that Issuing
Bank or Fronting Bank under the Letter of Credit or in connection
with it), claims, losses and expenses which that Issuing Bank or
Fronting Bank may at any time reasonably incur or sustain in
connection with or arising out of the Letter of Credit.
8.3 THE COMPANY'S INDEMNITY TO TERM FACILITY B LENDERS
The Company shall irrevocably and unconditionally as a primary obligation
indemnify (on demand of the Facility Agent) each Term Facility B Lender
against, in respect of the Existing L/Cs upon Deemed Facility B
Utilisation:
(a) any sum paid, or due and payable, by that Term Facility B Lender
(whether under Clause 28.1 (Lenders' Indemnity), Clause 28.2
(Direct Participation) or otherwise) in connection with the
Existing L/Cs; and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from that Term
Facility B Lender in connection with the Existing L/Cs upon Deemed
Facility B Utilisation, claims, losses and expenses which that
Term Facility B Lender may at any time reasonably incur or sustain
in connection with any Existing L/Cs upon Deemed Facility B
Utilisation.
8.4 PRESERVATION OF RIGHTS
Neither the obligations of the Company set out in this Clause 8 nor any
rights, powers and remedies conferred on any Term Facility B Lender,
Issuing Bank or Fronting Bank derived therefrom or by law shall be
discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of
the relevant upon Term Facility B Lender, Issuing Bank, Fronting
Bank or any other person or any change in the status, function,
control or ownership of any of them;
(b) any of the obligations of the relevant Term Facility B Lender,
Issuing Bank, Fronting Bank or any other person under any of the
Finance Documents, under the Letter of Credit or under any other
security taken in respect of the Company's obligations under any
of the Finance Documents, or otherwise in connection with the
Letter of Credit, being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted to
the relevant Term Facility B Lender, Issuing Bank, Fronting Bank
or any other person in respect of the obligations of any of them
under any of the Finance Documents, under or in connection with
the Letter of Credit or under any other security taken in respect
of
40
the Company's obligations under any of the Finance Documents, or
otherwise in connection with the Letter of Credit;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the relevant Term Facility B Lender, Issuing Bank,
Fronting Bank or any other person under the Letter of Credit or
under any of the Finance Documents; or
(e) any other act, event or omission which, but for this Clause 8,
might operate to discharge, impair or otherwise affect any of the
obligations of the Company set out in this Clause 8 or any of the
rights, powers or remedies conferred upon any Issuing Bank by
this Agreement or by law.
The obligations of the Company set out in this Clause 8 shall be in
addition to and independent of every other security which any Term
Facility B Lender, Issuing Bank or Fronting Bank may at any time hold in
respect of the Company's obligations under this Agreement or otherwise in
connection with the Letter of Credit.
8.5 SETTLEMENT CONDITIONAL
Any settlement or discharge between the Company and a Term Facility B
Lender, an Issuing Bank or a Fronting Bank shall be conditional upon no
security or payment to that Term Facility B Lender, Issuing Bank or
Fronting Bank by the Company, or any other person on behalf of the
Company, being avoided or reduced by virtue of any laws relating to
bankruptcy, insolvency, liquidation or similar laws of general
application and, if any such security or payment is so avoided or
reduced, that Term Facility B Lender, Issuing Bank or Fronting Bank shall
be entitled to recover the value or amount of such security or payment
from the Company subsequently as if such settlement or discharge had not
occurred.
8.6 RIGHT TO MAKE PAYMENTS UNDER THE LETTER OF CREDIT
Each Issuing Bank and Fronting Bank shall be entitled to make any payment
in accordance with the terms of the Letter of Credit without any
reference to, or further authority from, the Company or any other
investigation or enquiry. The Company irrevocably authorises each Issuing
Bank and Fronting Bank to comply with any demand under the Letter of
Credit which is valid on its face.
9. PREPAYMENT AND CANCELLATION
9.1 ILLEGALITY
If it becomes unlawful in any jurisdiction for a Lender, an Issuing Bank
or Fronting Bank to perform any of its obligations as contemplated by
this Agreement or to fund, issue, participate in or allow to remain
outstanding any Loan or the Letter of Credit:
(a) that Lender, the Issuing Bank or, as the case may be, Fronting
Bank shall promptly notify the Facility Agent upon becoming aware
of that event;
(b) upon the Facility Agent notifying the Company, any Commitment of
that Lender will be immediately cancelled or, as the case may be,
any obligation of that Issuing Bank or Fronting Bank to issue the
Letter of Credit will immediately cease; and
41
(c) each Borrower shall, on the last day of the Interest Period for
each Loan or Term for the Letter of Credit occurring after the
Facility Agent has notified the Company or, if earlier, the date
specified by the Lender, Issuing Bank or Fronting Bank in the
notice delivered to the Facility Agent (being no earlier than the
last day of any applicable grace period permitted by law):
(i) repay that Lender's participation in the Loans made to that
Borrower together with accrued interest thereon, Break Costs
and all other amounts owing to such Lender under the Finance
Documents;
(ii) (if the circumstance relates to an Issuing Bank) procure
either that such Issuing Banks's Letter of Credit Proportion
of the Letter of Credit be reduced to zero (by reduction of
the amount of the Letter of Credit in an amount equal to
that Issuing Bank's Letter of Credit Proportion) or that
Cash Collateral be provided in an amount in Euros equal to
such Issuing Bank's Letter of Credit Proportion of the
Letter of Credit; and
(iii) (if the circumstance relates to a Fronting Bank) procure
either that such Fronting Bank's liability under the Letter
of Credit be reduced to zero or that Cash Collateral be
provided in an amount in Euros equal to such Fronting Bank's
maximum actual and contingent liabilities under the Letter
of Credit.
9.2 MANDATORY PREPAYMENT FROM DEBT ISSUE OR EQUITY ISSUE
The Company shall ensure that an amount equal to one hundred (100) per
cent. of the Net Proceeds arising from a Debt Issue and an amount equal
to seventy-five (75) per cent. of the Net Proceeds arising from an Equity
Issue (such Equity Issue only to be made in accordance with applicable
laws) by any member of the Group are paid to the Facility Agent promptly
upon the receipt of such Net Proceeds by such Group member and applied in
prepayment of the Outstandings in accordance with Clause 9.6 (Application
of Prepayments).
9.3 MANDATORY PREPAYMENT FROM ASSET DISPOSALS
(a) Subject to paragraph (b) and (c) below, the Company shall ensure that the
Net Proceeds arising from the disposal of any asset by any member of the
Group are paid to the Facility Agent promptly upon the receipt of such
Net Proceeds by such Group member and applied in prepayment of the
Outstandings in accordance with Clause 9.6 (Application of Prepayments).
(b) Paragraph (a) shall not apply to Net Proceeds arising from any disposal
referred to in paragraph (a) above:
(i) to the extent that such Net Proceeds are promptly upon receipt by
the relevant Group member deposited in the Prepayment Account in
accordance with paragraph (c) below and the Company or the
relevant member of the Group can demonstrate to the satisfaction
of the Facility Agent that such disposal was on arms' length terms
and that the Net Proceeds are to be re-invested in similar or like
assets of a comparable or superior quality, type or value within a
period of 180 days from the date of receipt of such Net Proceeds
by such Group member;
42
(ii) if such disposal falls within paragraphs (a), (b), (c) or (e) of
the definition of "PERMITTED DISPOSAL" in Clause 1.1
(Definitions);
(iii) if such disposal relates to a sale of electrical contacts
(graphite specialties) by SGL PanTrac GmbH, Delta Ringsdorff S.A.
and Risomesa S.p.A.;
(iv) if the Net Proceeds per disposal do not exceed e 250,000 (or its
equivalent in another currency) or, when aggregated with the Net
Proceeds received by members of the Group from any other disposals
of assets made in the immediately preceding twelve (12) calendar
month period (excluding the Net Proceeds from disposals falling
within sub-paragraphs (i); (ii) or (iii) above), do not exceed
e 5,000,000 (or its equivalent in another currency).
(c) The Company shall ensure that any Net Proceeds to be applied in
accordance with paragraph (b)(i) above are promptly deposited in the
Prepayment Account upon receipt by the relevant Group member. The
relevant Group member that received the Net Proceeds shall be entitled,
during the period of 180 days from the date of receipt of such Net
Proceeds, to withdraw such Net Proceeds from the Prepayment Account only
to the extent that it is able to demonstrate to the satisfaction of the
Facility Agent that such Net Proceeds will be immediately re-invested in
accordance with paragraph (b)(i) above. Any amounts not so re-invested
during such 180 day period shall thereafter be paid to the Facility Agent
and applied in repayment of the Outstandings in accordance with Clause
9.6 (Application of Prepayments).
9.4 MANDATORY PREPAYMENT FROM INSURANCE PROCEEDS
(a) Subject to paragraphs (b) and (c) below, the Company shall ensure that
any Insurance Proceeds received by any member of the Group are paid to
the Facility Agent promptly upon the receipt of such Insurance Proceeds
by such Group member and applied in prepayment of the Outstandings in
accordance with Clause 9.6 (Application of Prepayments).
(b) Paragraph (a) shall not apply to any Insurance Proceeds unless the
Insurance Proceeds exceed e 250,000 (or its equivalent in another
currency) or, when aggregated with the Insurance Proceeds received by
members of the Group from claims made in the immediately preceding twelve
(12) calendar month period (excluding the Insurance Proceeds from
disposals falling within paragraphs (c) below), exceed e 5,000,000 (or
its equivalent in another currency).
(c) Paragraph (a) shall not apply to any Insurance Proceeds to the extent
that:
(i) such Insurance Proceeds are promptly upon receipt by the relevant
member of the Group deposited in the Prepayment Account in
accordance with paragraph (d) below; and
(ii) such Insurance Proceeds are applied, to the satisfaction of the
Facility Agent, towards the replacement, reinstatement and/or
repair of the assets and/or the satisfaction of business
interruption losses in respect of which the relevant insurance
claim was made (or to refinance any expenditure incurred in the
replacement, reinstatement and/or repair of such assets and/or the
satisfaction of business interruption losses) within a period of
180 days from the date of receipt of such Insurance Proceeds by
the relevant Group member.
43
(d) The Company shall ensure that any Insurance Proceeds to be applied in
accordance with paragraph (c) above are promptly deposited in the
Prepayment Account, upon receipt by the relevant Group member. The
relevant Group member that received the Insurance Proceeds shall be
entitled, during the period of 180 days from the date of its receipt of
such Insurance Proceeds, to withdraw such Insurance Proceeds from the
Prepayment Account only to the extent that it is able to demonstrate to
the satisfaction of the Facility Agent that such Insurance Proceeds will
be immediately applied in accordance with paragraph (c) above. Any sums
not so withdrawn during the 180 day period shall thereafter be paid to
the Facility Agent and applied in prepayment of the Outstandings in
accordance with Clause 9.6 (Application of Prepayments).
9.5 MANDATORY PREPAYMENT FROM EXCESS CASH FLOW
The Company shall ensure that, within thirty (30) days of delivery to the
Facility Agent of the most recent audited consolidated financial
statements of the Company pursuant to Clause 21.1(a), commencing with the
audited consolidated financial statements of the Company for the
financial year ending 31 December 2003, an amount equal to fifty (50) per
cent. of the amount of the Excess Cash Flow exceeding a minimum amount of
e10,000,000 for the financial year to which such financial statements
relate shall be applied in prepayment of the Outstandings in accordance
with Clause 9.6 (Application of Prepayments).
9.6 APPLICATION OF PREPAYMENTS
(a) Any amounts paid to the Facility Agent in accordance with Clause 9.2
(Mandatory Prepayment from Debt Issue or Equity Issue) to Clause 9.5
(Mandatory Prepayment from Excess Cash Flow) (inclusive) shall be
applied:
(i) first, in prepayment of all outstanding Term Facility A Loans
drawn by the Company in inverse order of maturity;
(ii) secondly, in prepayment on a pro rata basis of all outstanding
Term Facility A Loans drawn by Borrowers other than the Company in
inverse order of maturity;
(iii) thirdly, that Cash Collateral be provided in an amount equal to
each Issuing Bank's Letter of Credit Proportion or Fronting Bank's
liability under the Letter of Credit in Euros;
(iv) fourthly, in permanent prepayment on a pro rata basis of all
outstanding Revolving Credit Facility Loans (in such order as the
Company may select or, in the absence of such selection, as the
Facility Agent shall determine); and
(v) fifthly, if any excess remains, in payment of such excess to the
relevant member of the Group.
(b) Any prepayment of the Term Facility A Loans in accordance with this
Clause 9.6 shall reduce (and there shall be a corresponding cancellation
in) the Available Facility in respect of Term Facility A. Any such
cancellation shall reduce the Commitments of the Lenders rateably under
Term Facility A. No amount so cancelled may be reborrowed.
(c) Any prepayment of the Revolving Credit Facility Loans in accordance with
this Clause 9.6 shall reduce (and there shall be a corresponding
cancellation in) the Available Facility in respect of the Revolving
Credit Facility. Any such cancellation shall reduce the
44
Commitments of the Lenders rateably under that Facility. No amount so
cancelled may be reborrowed.
9.7 DATE FOR PREPAYMENT
(a) If Clause 9.2 (Mandatory Prepayment from Debt Issue or Equity Issue) to
Clause 9.5 (Mandatory Prepayment from Excess Cash Flow) (inclusive) would
require the prepayment of a Loan otherwise than on the last day of an
Interest Period relating to that Loan, the Company may, by written notice
to the Facility Agent (to be received not less than three (3) Business
Days prior to the date on which such prepayment would be required to be
made (but for this Clause 9.7)), request that the amount of such
prepayment be placed in an identified Prepayment Account in which event
such amount shall be paid to the credit of such Prepayment Account and
shall be applied by the Facility Agent in prepayment of the relevant Loan
on the last day of the then current Interest Period relating to that
Loan. The interest earned on such Prepayment Account will be applied by
the Facility Agent towards the interest due in respect of the relevant
Loan at the time the amount is applied in prepayment of that Loan.
(b) So long as any Loan remains outstanding or any of the Commitments are
available for drawing, no amount shall be withdrawn from such Prepayment
Account except for immediate application in making any prepayment
pursuant to Clause 9.2 (Mandatory Prepayment from Debt Issue or Equity
Issue) to Clause 9.5 (Mandatory Prepayment from Excess Cash Flow)
(inclusive) or as provided in paragraph (c) below.
(c) The Facility Agent shall be entitled (but not obliged) to apply the whole
or any part of the sums standing to the credit of such Prepayment Account
in or towards payment of any unpaid sums at any time due from any Obligor
under this Agreement.
9.8 VOLUNTARY PREPAYMENT
(a) A Borrower to which a Term Facility A Loan has been made may, if it gives
the Facility Agent not less than five (5) Business Days' (or such shorter
period as the Majority Lenders may agree) prior notice, prepay the whole
or any part of any Term Facility A Loan (but, if in part, being an amount
that reduces the amount of the relevant Term Facility A Loan by a minimum
amount of e 500,000 and represents an integral multiple of e 250,000).
(b) A Term Facility A Loan may only be prepaid after the last day of the
Availability Period applicable to Term Facility A (or, if earlier, the
first day on which the Available Facility applicable to Term Facility A
is zero).
(c) Any prepayment under this Clause 9.8 shall be applied in the order of
maturity set out in Clause 7.1 (Repayment of Term Facility A Loans).
(d) The Company may not, prior to the Revolving Credit Facility Final
Repayment Date, prepay the whole or any part of the Term Facility C Loan.
However, in case the Lenders of the Term Facility C Loan consent,
contrary to the preceding sentence, to a prepayment of the whole or any
part of the Term Facility C Loan, any such prepayment shall be set off
against the outstanding Repayment Amounts of Term Facility C in inverse
chronological order.
45
9.9 CASH COLLATERALISATION OF THE LETTER OF CREDIT
The Company may provide Cash Collateral in Euros to reduce an Issuing
Bank's Letter of Credit Proportion or a Fronting Bank's liability under
the Letter of Credit at any time, PROVIDED THAT to the extent that the
Letter of Credit is issued by more than one Issuing Bank, such Cash
Collateral shall be applied towards the pro rata reduction of each
Issuing Bank's Letter of Credit Proportion.
9.10 VOLUNTARY CANCELLATION
(a) Except in relation to Term Facility C, the Company may, if it gives the
Facility Agent not less than five (5) Business Days' (or such shorter
period as the Majority Lenders may agree) prior notice, cancel the whole
or any part (being a minimum amount of e 500,000 and representing an
integral multiple of e250,000) of an Available Facility. Any
cancellation under this Clause 9.10 shall reduce the Commitments of the
Lenders rateably under that Facility.
(b) The Company may give the Facility Agent not less than five (5) Business
Days' (or such shorter period as the Majority Lenders may agree) prior
notice of its intention to procure that the relevant Issuing Bank's
liability under the Letter of Credit is reduced to zero (whereupon the
Company shall do so).
9.11 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER,
ISSUING BANK OR FRONTING BANK
(a) If:
(i) any sum payable to any Lender or Fronting Bank by an Obligor is
required to be increased under Clause 14.2(c); or
(ii) any Lender or Fronting Bank claims indemnification from the
Company (or that the Company procures that the liabilities of each
of Issuing Banks or Fronting Banks under or in connection with the
Letter of Credit are promptly reduced to zero) under Clause 14.3
(Tax Indemnity) or Clause 15.1 (Increased Costs); or
(iii) any Lender notifies the Facility Agent of its Additional Cost Rate
under paragraph 3 of Schedule 4 (Mandatory Cost Formula),
the Company may, whilst (in the case of paragraphs (i) and (ii) above)
the circumstance giving rise to the requirement or indemnification
continues or (in the case of paragraph (iii) above) that Additional Cost
Rate is greater than zero, give the Facility Agent at least ten (10)
Business Days' prior written notice:
(A) of cancellation of the Commitments of that Lender and its
intention to procure the repayment of that Lender's participation
in the Loans; or
(B) (if such circumstance relates to an Issuing Bank or Fronting Bank)
the reduction to zero of that Issuing Bank's or Fronting Bank's
liability in respect of the Letter of Credit or the provision of
Cash Collateral in respect of that Issuing Bank's Letter of Credit
Proportion or Fronting Bank's liability under the Letter of
Credit.
(b) On receipt of a notice referred to in paragraph (a) above, any Commitment
of that Lender shall immediately be reduced to zero.
46
(c) On the last day of each Interest Period or, as the case may be, Term
which ends after the Company has given notice under paragraph (a) above
(or, if earlier, the date specified by the Company in that notice), each
Borrower to which a Loan is outstanding and the Company in relation to
the Letter of Credit shall:
(i) repay that Lender's participation in that Loan; and
(ii) procure either that such Issuing Bank's Letter of Credit
Proportion of the Letter of Credit be reduced to zero (by
reduction of the amount of the Letter of Credit in an amount equal
to that Issuing Bank's Letter of Credit Proportion) or that Cash
Collateral be provided in an amount equal to such Issuing Bank's
Letter of Credit Proportion of the Letter of Credit in Euros); and
(iii) (if the circumstance relates to a Fronting Bank) procure that such
Fronting Bank's liability under the Letter of Credit shall either
be reduced to zero or that Cash Collateral be provided in an
amount equal to such Fronting Bank's maximum actual and contingent
liabilities under the Letter of Credit.
9.12 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 9 shall be irrevocable and, unless a contrary indication appears
in this Agreement, shall specify the date or dates upon which the
relevant cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
(c) No Borrower may reborrow any part of a Term Facility that is prepaid.
(d) Unless a contrary indication appears in this Agreement, any part of the
Revolving Credit Facility that is prepaid (other than pursuant to Clause
9.6 (Application of Prepayments)) may be reborrowed in accordance with
the terms of this Agreement.
(e) The Borrowers shall not repay or prepay all or any part of the Loans,
reduce the liabilities of the Issuing Banks and/or Fronting Banks or
provide Cash Collateral in respect of the Letter of Credit, and the
Company shall not cancel all or any part of the Commitments, except at
the times and in the manner expressly provided for in this Agreement.
(f) No amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
(g) If the Facility Agent receives a notice under this Clause 9 it shall
promptly forward a copy of that notice to either the Company or the
affected Lender, as appropriate.
(h) Any reduction or cancellation of a Term Facility A Commitment, a Term
Facility B Commitment, the Term Facility C Commitment or, as the case may
be, a Revolving Credit Facility Commitment under this Clause 9 shall
reduce the Total Term Facility A Commitments, the Total Term Facility B
Commitments, the Total Term Facility C Commitment or, as the case may be,
Total Revolving Credit Facility Commitments by the amount of such
reduction or cancellation.
47
SECTION 5
COSTS OF UTILISATION
10. INTEREST
10.1 CALCULATION OF INTEREST IN RESPECT OF TERM FACILITY A LOANS AND REVOLVING
CREDIT FACILITY LOANS
The rate of interest on each Term Facility A Loan and each Revolving
Credit Facility Loan for each Interest Period is the percentage rate per
annum which is the aggregate of the applicable:
(a) Margin;
(b) EURIBOR or, in relation to any Loan in Dollars, LIBOR; and
(c) Mandatory Cost, if any.
10.2 MARGIN RATCHETS
(a) Save as provided in paragraph (b) below, the Margin, in relation to a
Term Facility A Loan and a Revolving Credit Facility Loan, respectively,,
shall be the percentage rate per annum specified in the definition of
"INITIAL MARGIN" in Clause 1.1 (Definitions).
(b) Save as provided in Clause 10.4 (No Margin Ratchets in Default) and in
accordance with Clause 10.3 (Margin Changes), if after six (6) Months
from the date of this Agreement any unaudited consolidated management
accounts of the Group in respect of the preceding four Financial
Quarters, and the Compliance Certificate relating to such financial
statements, delivered to the Facility Agent pursuant to Clause 21.1
(Financial Statements) and Clause 21.2 (Compliance Certificates)
respectively, disclose that the Leverage Ratio as at and for the period
of twelve (12) months ending on the last day of that Financial Quarter
falls within a range of the ratios specified in Column A below, then the
Margin, in respect of all Loans, shall be the reduced percentage rate per
annum set out opposite such ratios in Column B below:
--------------------------------------------------------------------------------
COLUMN A COLUMN B
(LEVERAGE RATIO) (MARGIN (PER CENT. PER ANNUM))
--------------------------------------------------------------------------------
Greater than 4.0:1 2.75 per cent. per annum
--------------------------------------------------------------------------------
Equal to or less than 4.0:1 but greater than 3.5:1 2.50 per cent. per annum
--------------------------------------------------------------------------------
Equal to or less than 3.5:1 but greater than 3.0:1 2.25 per cent. per annum
--------------------------------------------------------------------------------
Equal to or less than 3.0:1 but greater than 2.5:1 1.75 per cent. per annum
--------------------------------------------------------------------------------
Equal to or less than 2.5:1 but greater than 2.0:1 1.50 per cent. per annum
--------------------------------------------------------------------------------
Equal to or less than 2.0:1 but greater than 1.0:1 1.00 per cent. per annum
--------------------------------------------------------------------------------
Equal to or less than 1.0:1 0.75 per cent. per annum
--------------------------------------------------------------------------------
48
PROVIDED THAT, in the event that Term Facility A Outstandings:
(i) exceed e 200,000,000 on or after 31 December 2003, the Margin as
calculated above will automatically increase by 0.50 per cent. per
annum; and
(ii) exceed e 175,000,000 on or after 30 June 2004, the Margin as
calculated above will automatically increase by a further 1.00 per
cent. per annum.
10.3 MARGIN CHANGES
(a) Save as provided in this Clause 10.3 and Clause 10.4 (No Margin Ratchets
in Default), any reduction in the Margin provided for by Clause 10.2
(Margin Ratchets) shall take effect, in relation to all existing and
future Term Facility A Loans and Revolving Credit Facility Loans,
respectively, during (but only during) the period from (and including)
the date on which the next subsequent Interest Period commences
immediately after the conclusion of the current Interest Period during
which the Facility Agent has received the relevant consolidated financial
statements of the Group, and the Compliance Certificate pursuant to
Clause 21.2 (Compliance Certificates) for the relevant Financial Quarter,
until (but excluding) the date on which the next subsequent Interest
Period commences immediately after the conclusion of the current Interest
Period (a "READJUSTMENT DATE") during which the earlier of the following
occurs:
(i) the date on which the Facility Agent next receives quarterly
consolidated financial statements of the Group pursuant to Clause
21.1 (Financial Statements); and
(ii) the latest date by which the Facility Agent should have received
any such quarterly consolidated financial statements of the Group
in accordance with Clause 21.1 (Financial Statements), but has not
done so.
(b) On each Readjustment Date the Margin in respect of all Term Facility A
Loans and Revolving Credit Facility Loans shall revert to the Initial
Margin for the applicable Facility, unless a reduced Margin is applicable
to any such Loans in accordance with Clause 10.2 (Margin Ratchets).
(c) If in any financial year of the Group:
(i) the Margin has been reduced pursuant to this Clause 10.3 in
reliance on a Compliance Certificate relating to consolidated
financial statements of the Group delivered pursuant to Clause
21.1 (Financial Statements) in respect of any Financial Quarter in
that financial year; and
(ii) the audited consolidated financial statements of the Group
delivered pursuant to Clause 21.1 (Financial Statements) in
respect of that financial year show that such reduction should not
have been made,
that reduction shall be reversed with retrospective effect, the Margin
applicable to the relevant Facility shall be that justified by the
audited consolidated financial statements,
49
amounts of interest calculated by reference to the reduced Margin
(whether or not already paid) shall be recalculated by reference to the
Margin justified by such financial statements and the Borrowers shall be
required to make a payment to the Facility Agent, in such amounts as the
Facility Agent may specify, to cover any shortfall in amounts of interest
which should have been received by the Lenders following any
recalculation. The Facility Agent's determination of any such shortfall
shall, save in the case of manifest error, be conclusive and the Facility
Agent shall provide the Company with reasonable details of the
calculation of such shortfall.
10.4 NO MARGIN RATCHETS IN DEFAULT
(a) No reduction in the Margin provided for by Clause 10.2 (Margin Ratchets)
shall take effect from the date determined by the Facility Agent as being
the date on which a Default has occurred or come into existence (and the
Margin shall thereafter immediately convert to the Default Margin) until
the date specified by the Facility Agent as being the date on which it
has been demonstrated to its reasonable satisfaction that such Default is
no longer continuing or has been waived or in the case of a breach of a
financial covenant under Clause 21 (Financial Covenants), the date on
which the Facility Agent receives a Compliance Certificate confirming
that such breach has been remedied (and the Margin shall thereafter be
determined in accordance with Clause 10.2 (Margin Ratchets) on the basis
of the unaudited consolidated management accounts of the Group in respect
of the preceding four Financial Quarters last delivered to the Facility
Agent pursuant to Clause 21.1 (Financial Statements), together with the
Compliance Certificate relating to such financial statements delivered
pursuant to Clause 21.2 (Compliance Certificates). If the Facility Agent
has reasonable doubts (berechtigte Xxxxxxx) that such breach has been
remedied, the Facility Agent (acting on behalf of the Majority Lenders)
may request that the management accounts are to be reviewed by auditors.
(b) The Facility Agent shall promptly notify the Lenders and the Company of
any determination that a Default has occurred or exists or, as the case
may be, that it has been demonstrated to its reasonable satisfaction that
such Default is no longer continuing.
10.5 PAYMENT OF INTEREST
The Borrower to which a Term Facility A Loan or, as the case may be, a
Revolving Credit Facility Loan has been made shall pay accrued interest
on that Loan on the last day of each Interest Period (and, if the
Interest Period is longer than six (6) Months, on the dates falling at
six-monthly intervals after the first day of the Interest Period).
10.6 CALCULATION AND PAYMENT OF INTEREST IN RESPECT OF THE TERM FACILITY C
LOAN
The rate of interest on the Term Facility C Loan is 7,36 per cent. per
annum calculated on the basis of 30 days per month and otherwise of the
actual number of days elapsed and a 360 days' year. The Borrower to which
a Term Facility C Loan has been made shall pay accrued interest on that
Loan on each 31 March and each 30 September of each calendar year.
However, in respect of the interest payment due in relation to the period
ending 31 March 2003, the Lender under Term Facility C will notify the
amount of interest due on such date to the Facility Agent in writing in
advance and the Facility Agent will collect such amount from the Company
for distribution to such Lender.
50
10.7 DEFAULT INTEREST AND PENALTY
(a) An Obligor shall be in default (Verzug) if it fails to pay any amount
(other than in payment of interest and fees, other than commitment fees)
payable by it under a Finance Document on its due date. On the occurrence
of such a default (Verzug), interest shall accrue on the overdue amount
from the due date up to the date of actual payment (both before and after
judgment) at a rate per annum determined by the Facility Agent from time
to time to be the aggregate of (i) EURIBOR or, in relation to any Loan in
Dollars, LIBOR, (ii) 4.00 per cent. and (iii) the Mandatory Cost for such
period as the Facility Agent may select on the Business Day immediately
following such date, such rate to be recalculated on the same basis at
the end of each such period until such sum is received by the Facility
Agent. Any interest accruing under this Clause 10.7 shall be immediately
payable by the Obligor on demand by the Facility Agent.
(b) If an Obligor fails to pay any amounts in payment of interest or fees
under a Finance Document on its due date, such Obligor shall pay
liquidated damages to the Facility Agent for the account of the relevant
Lenders in an amount determined by the Facility Agent as being, in
respect of the period from the due date of payment until receipt by the
Facility Agent of the relevant amount, the equivalent of interest at a
rate determined in accordance with Clause 10.7(a) applied to the relevant
overdue amount.
(c) In the circumstances described in sub-Clauses (a) and (b) above, the
Company shall be entitled to demonstrate that the damage actually
suffered by the Lenders is lower than the amounts determined in
accordance therewith, and the Lenders shall be entitled to prove and
claim for any higher damage.
10.8 NOTIFICATION OF RATES OF INTEREST
The Facility Agent shall promptly notify the Lenders and the relevant
Borrower of the determination of a rate of interest under this Agreement.
11. INTEREST PERIODS AND THE TERM
11.1 SELECTION OF INTEREST PERIODS
(a) A Borrower may select an Interest Period for a Loan in the Utilisation
Request for that Loan or (in relation to a Term Facility A Loan that has
already been borrowed) in a Selection Notice.
(b) Each Selection Notice for a Term Facility A Loan is irrevocable and must
be delivered to the Facility Agent by the Borrower to which that Term
Facility A Loan was made not later than the Specified Time.
(c) If a Borrower fails to deliver a Selection Notice to the Facility Agent
in accordance with paragraph (b) above, the relevant Interest Period
will, subject to Clause 11.2 (Changes to Interest Periods), be one (1)
Month, except for a Term Facility A Loan, in relation to which the
relevant Interest Period will, subject to Clause 11.2 (Changes to
Interest Periods), be three (3) Months.
(d) Subject to this Clause 11, a Borrower may select an Interest Period of
one (1) (but not in relation to a Term Facility A Loan), two (2), three
(3) or six (6) Month(s) or any other period (except in relation to a
Revolving Credit Facility Loan) agreed between the relevant Borrower and
the Facility Agent (acting on the instructions of all the Lenders);
however, in
51
relation to a Revolving Credit Facility Loan, there may not be more than
twelve (12) one Month Interest Periods in any one year.
(e) Subject to Clause 11.3, an Interest Period for a Term Facility A Loan
shall not extend beyond the Term Facility A Final Repayment Date. An
Interest Period for a Revolving Credit Facility Loan shall not extend
beyond the Revolving Credit Facility Final Repayment Date. The Term for
the Letter of Credit shall not extend beyond the Term Facility B
Repayment Date.
(f) Each Interest Period for a Term Facility A Loan shall start on the
Utilisation Date or (if already made) on the last day of its preceding
Interest Period.
(g) A Revolving Credit Facility Loan has one Interest Period only, which
shall start on the Utilisation Date.
(h) The Term for the Letter of Credit shall start on the Utilisation Date.
11.2 CHANGES TO INTEREST PERIODS
(a) Prior to determining the interest rate for a Term Facility A Loan, the
Facility Agent may, but is not obliged to, shorten an Interest Period for
any Term Facility A Loan to ensure that the Loans drawn by any Borrower
in respect of that Term Facility A and having an Interest Period ending
on a Term Facility A Repayment Date have an aggregate Euro Amount equal
to or greater than the relevant Repayment Instalment applicable to that
Borrower and that Loan on that date.
(b) Prior to determining the interest rate for a Revolving Credit Facility
Loan, the Facility Agent may, but is not obliged to, shorten an Interest
Period for any Revolving Credit Facility Loan, so that it ends on a
Revolving Credit Facility Cancellation Date (or, if any such date is not
a Business Day, on the preceding Business Day), in order to ensure that
the aggregate Euro Amount of the Revolving Credit Facility Loans will not
exceed the Total Revolving Credit Facility Commitments immediately after
any Revolving Credit Facility Cancellation Date.
(c) If the Facility Agent makes any of the changes to an Interest Period
referred to in this Clause 11.2, it shall promptly notify the Company and
the Lenders.
11.3 NON-BUSINESS DAYS
If an Interest Period or Term would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next Business
Day in that calendar month (if there is one) or the preceding Business
Day (if there is not).
11.4 CONSOLIDATION AND DIVISION OF TERM FACILITY A LOANS
(a) Subject to paragraph (b) below, if two or more Interest Periods:
(i) relate to Loans under the Term Facility A and in the same
currency; and
(ii) end on the same date; and
(iii) are made to the same Borrower,
52
those Term Facility A Loans will, unless that Borrower specifies to the
contrary in the Selection Notice for the next Interest Period, be
consolidated into, and treated as, a single Loan under the Term Facility
A on the last day of the Interest Period.
(b) Subject to Clause 4.3 (Maximum Number of Loans and Letters of Credit) and
Clause 5.3 (Currency and Amount), if a Borrower requests in a Selection
Notice that a Term Facility A Loan be divided into two or more Loans
under Term Facility A, that Term Facility A Loan will, on the last day of
its Interest Period, be so divided with amounts specified in that
Selection Notice, being an aggregate Euro Amount equal to the Euro Amount
of the Term Facility A Loan immediately before its division, having taken
into account any repayment to be made on that day.
12. CHANGES TO THE CALCULATION OF INTEREST
12.1 ABSENCE OF QUOTATIONS
Subject to Clause 12.2 (Market Disruption), if EURIBOR or, if applicable,
LIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable EURIBOR or LIBOR shall be determined on the
basis of the quotations of the remaining Reference Banks.
12.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share of that
Loan for the Interest Period shall be the rate per annum which is the sum
of:
(i) the Margin;
(ii) the rate notified to the Facility Agent by that Lender as soon as
practicable and in any event before interest is due to be paid in
respect of that Interest Period, to be that which expresses as a
percentage rate per annum the cost to that Lender of funding its
participation in that Loan from whatever source it may reasonably
select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one of
the Reference Banks supplies a rate to the Facility Agent to
determine EURIBOR or, if applicable, LIBOR for the relevant
currency and Interest Period; or
(ii) before close of business in Luxembourg on the Quotation Day for
the relevant Interest Period, the Facility Agent receives
notifications from a Lender or Lenders (whose participations in a
Loan exceed fifty (50) per cent. of that Loan) that the cost to it
of obtaining matching deposits in the Relevant Interbank Market
would be in excess of EURIBOR or, if applicable, LIBOR.
12.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Facility Agent or the Company
so requires, the Facility Agent and the Company shall enter into
negotiations (for a period of not more than
53
thirty (30) days) with a view to agreeing a substitute basis for
determining the rate of interest. If no agreement is reached, Clause 12.2
(Market Disruption) shall continue to apply.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall, with
the prior consent of all the Lenders and the Company, be binding on all
Parties.
12.4 BREAK COSTS
(a) Each Borrower shall, within three (3) Business Days of demand by the
Facility Agent acting on behalf of a Finance Party, pay to the Facility
Agent on demand for the account of that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being paid by
that Borrower on a day other than the last day of an Interest Period or
Term for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by
the Facility Agent, provide a certificate confirming the amount of its
Break Costs for any Interest Period in which they accrue.
13. FEES
13.1 COMMITMENT FEE
(a) The Company shall, in respect of each Term Facility (except for Term
Facility C), pay to the Facility Agent (for the account of each Lender) a
commitment fee in Euros, as the case may be, computed at the rate of
fifty (50) per cent. of the Margin on that Lender's Available Commitment
under each Term Facility for the Availability Period applicable to that
Term Facility.
(b) The Company shall, in respect of the Revolving Credit Facility, pay to
the Facility Agent (for the account of each Lender) a commitment fee in
Euros computed at the rate of fifty (50) per cent. of the Margin on that
Lender's Available Commitment under the Revolving Credit Facility for the
Availability Period applicable to the Revolving Credit Facility.
(c) Accrued commitment fees are payable on the last day of each successive
period of three (3) Months which ends during the relevant Availability
Period, on the last day of the relevant Availability Period and on the
cancelled amount of the relevant Lender's Commitment at the time the
cancellation is effective.
13.2 AGENCY FEE
The Company shall pay to the Facility Agent (for its own account) an
agency fee in the amount and at the times agreed in a Fee Letter.
13.3 SECURITY AGENT FEE
The Company shall pay to the Security Agent (for its own account) a
security agent fee in the amount and at the times agreed in a Fee Letter.
13.4 LETTER OF CREDIT COMMISSION
(a) The Company shall, in respect of the Letter of Credit II or, upon the
Deemed Facility B Utilisation , in respect of the Existing L/Cs,
respectively, pay to the Facility Agent (for the account of each Term B
Facility Lender) (for distribution in proportion to each Term B
54
Facility Lender's Letter of Credit Proportion of the Letter of Credit) a
letter of credit commission in Euros computed at the rate of the Margin
(as may be adjusted in accordance with Clause 10.2 (Margin Ratchets)) on
the maximum actual and contingent liabilities of the Term B Facility
Lenders under the Letter of Credit less the amount of any Cash Collateral
provided in respect of that Letter of Credit (the "LETTER OF CREDIT
COMMISSION RATE").
(b) The letter of credit commission shall be paid in arrears in respect of
each preceding period of three (3) Months (or such shorter period as
shall end on the Expiry Date) which begins during the Term of the Letter
of Credit, the first payment to be made on the Utilisation Date for the
Letter of Credit and after that on the first day of each such successive
period.
13.5 ARRANGEMENT FEE
The Company shall pay to the Mandated Lead Arrangers an arrangement fee
in the amount and at the times agreed in a Fee Letter.
13.6 FRONTING FEE
The Fronting Fee in Euros of 0.25 per cent. per annum to be paid to each
Fronting Bank on the amount of such Fronting Bank's maximum actual and
contingent liabilities as a Fronting Bank under the Existing L/Cs (less
the amount of any Cash Collateral provided for such liabilities and less
the amount of the own commitment of the Fronting Bank in its capacity as
Lender) payable in arrears in respect of each preceding period of three
(3) Months (or such shorter period as shall end on the Expiry Date) which
begins during the Term of the Letter of Credit, the first payment to be
made on the Utilisation Date for the Letter of Credit and after that on
the first day of each such successive period..
13.7 SUBFACILITY MARGIN AND COMMITMENT FEE
(a) Each Subfacility Bank shall, in respect of its Subfacility and to the
extent such amounts are actually received from the relevant Borrower by
the Subfacility Bank, pay to the Facility Agent (for the account of each
Lender) (for distribution in proportion to each Lender's Revolving Credit
Facility Commitment) (i) interest equal to the Margin applicable to a
Revolving Credit Facility Loan (as may be adjusted in accordance with
Clause 10.2 (Margin Ratchets)) on the daily utilised amount under the
Subfacility (the "SUBFACILITY MARGIN") and (ii) a commitment fee computed
at the rate per annum set out in Clause 13(1)(b) above on the daily
unutilised amount under the Subfacility (the "SUBFACILITY COMMITMENT
FEE").
(b) The Subfacility Margin and the Subfacility Commitment Fee shall be
payable monthly in arrears.
13.8 SUBFACILITY FEE
Each Borrower shall, in respect of each Subfacility established for it,
pay to the relevant Subfacility Bank for the latter's own account a fee
on the amount of such Subfacility from day to day during the period
beginning with the date of the establishment of the Subfacility and
ending on the date on which such Subfacility expires in accordance with
the terms of this Agreement, such fee to be calculated at the rate of
0,25 per cent. per annum payable monthly in arrears.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. TAX GROSS UP AND INDEMNITIES
14.1 DEFINITIONS
(a) In this Clause 14:
"PROTECTED PARTY" means a Finance Party that is or will be subject to any
liability, or required to make any payment, for or on account of Tax in
relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance Document.
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of, any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
"TAX PAYMENT" means an increased payment made by an Obligor to a Finance
Party under Clause 14.2 (Tax Gross-up) or a payment under Clause 14.3
(Tax Indemnity).
(b) In this Clause 14 a reference to "DETERMINES" or "DETERMINED" means a
determination made in the absolute discretion of the person making the
determination.
14.2 TAX GROSS-UP
(a) Each Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law.
(b) A Borrower shall promptly upon becoming aware that an Obligor must make a
Tax Deduction (or that there is any change in the rate or the basis of a
Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender
shall notify the Facility Agent on becoming so aware in respect of a
payment payable to that Lender. If the Facility Agent receives such
notification from a Lender it shall notify the relevant Borrower and that
Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor, the
amount of the payment due from that Obligor shall be increased to an
amount which (after making any Tax Deduction) leaves an amount equal to
the payment which would have been due if no Tax Deduction had been
required.
(d) An Obligor is not required to make an increased payment to a Lender under
paragraph (c) above for a Tax Deduction in respect of tax imposed on a
payment of interest on a Loan, if on the date on which the payment falls
due, the Obligor making the payment is able to demonstrate that the
payment:
(i) relates to a Tax referred to in Clause 14.3(b); or
(ii) could have been made to the Lender without the Tax Deduction had
that Lender complied with its obligations under paragraph (g)
below.
56
(e) If an Obligor is required to make a Tax Deduction, that Obligor shall
make that Tax Deduction and any payment required in connection with that
Tax Deduction within the time allowed and in the minimum amount required
by law.
(f) Within thirty (30) days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Obligor making that
Tax Deduction shall deliver to the Facility Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
(g) A Finance Party and each Obligor that makes a payment to which that
Finance Party is entitled shall, to the extent practicable, co-operate in
completing any procedural formalities necessary in due time for that
Obligor to obtain authorisation to make that payment without a Tax
Deduction.
14.3 TAX INDEMNITY
(a) The Company shall (within three (3) Business Days of demand by the
Facility Agent) pay to a Protected Party an amount equal to the loss,
liability or cost that that Protected Party determines will be or has
been (directly or indirectly) suffered for or on account of Tax by that
Protected Party.
(b) Paragraph (a) above shall not apply with respect to any Tax assessed on a
Finance Party:
(i) under the law of the jurisdiction in which that Finance Party is
incorporated or, if different, the jurisdiction (or jurisdictions)
in which that Finance Party is treated as resident for tax
purposes or, for the avoidance of doubt, caused by its German
limited tax liability (beschrankte Steuerpflicht); or
(ii) under the law of the jurisdiction in which that Finance Party's
Facility Office is located in respect of amounts received or
receivable in that jurisdiction,
if in either case that Tax is imposed on or calculated by reference to
the net income received or receivable (but not any sum deemed to be
received or receivable) by that Finance Party.
(c) A Protected Party making, or intending to make, a claim pursuant to
paragraph (a) above shall promptly notify the Facility Agent of the event
which will give, or has given, rise to the claim, following which the
Facility Agent shall notify the Company.
(d) A Protected Party shall, on receiving a payment from an Obligor under
this Clause 14.3, notify the Facility Agent.
14.4 TAX CREDIT
(a) If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(i) a Tax Credit is attributable to that Tax Payment; and
(ii) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Deduction not been required
by law.
57
(b) If such a Tax Credit by reference to which a Finance Party has made a
payment to an Obligor under paragraph (a) above is subsequently
disallowed or cancelled, the Obligor must reimburse any payment made
under paragraph (a) above to the relevant Finance Party.
(c) If an Obligor makes a Tax Payment, a Finance Party shall take all
reasonable steps to claim a Tax Credit unless in the opinion of that
Finance Party the making of such claim might have an adverse effect on
its business, operations, property, condition or prospects (financial or
otherwise). The relevant Obligor shall bear any costs incurred by a
Finance Party in making such a claim.
14.5 STAMP TAXES
The Company shall pay and, within three (3) Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document. Each
Finance Party shall use best efforts to avoid incurring such stamp duty,
registration and other similar Taxes in circumstances where it would be
reasonable for it to do so.
14.6 VALUE ADDED TAX
(a) All consideration payable under a Finance Document by an Obligor to a
Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable, the Obligor shall pay to the Finance Party (in addition to
and at the same time as paying the consideration) an amount equal to the
amount of the VAT.
(b) Where a Finance Document requires an Obligor to reimburse a Finance Party
for any costs or expenses, that Obligor shall also at the same time pay
and indemnify that Finance Party against all VAT incurred by that Finance
Party in respect of the costs or expenses save to the extent that that
Finance Party is entitled to repayment or credit in respect of the VAT.
15. INCREASED COSTS
15.1 INCREASED COSTS
(a) Subject to Clause 15.3 (Exceptions) the Company shall, within three (3)
Business Days of a demand by the Facility Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that Finance
Party or any of its Affiliates as a result of:
(i) the introduction of or any change in (or in the interpretation or
application of) any law or regulation; or
(ii) compliance with any law or regulation made after the date of this
Agreement.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facilities or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
58
which is incurred or suffered by a Finance Party or any of its Affiliates
to the extent that it is attributable to that Finance Party having
entered into its Commitment or funding or performing its obligations
under any Finance Document or the Letter of Credit.
15.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 15.1
(Increased Costs) shall notify the Facility Agent of the event giving
rise to the claim, following which the Facility Agent shall promptly
notify the Company.
(b) Each Finance Party shall, as soon as practicable after a demand by the
Facility Agent or the Company, provide a certificate confirming the
amount of its Increased Costs in and supported in reasonable detail in
abstract terms.
15.3 EXCEPTIONS
(a) Clause 15.1 (Increased Costs) does not apply to the extent any Increased
Cost is:
(i) attributable to a Tax Deduction required by law to be made by an
Obligor;
(ii) compensated for by Clause 14.3 (Tax Indemnity) (or would have been
compensated for under Clause 14.3 (Tax Indemnity) but was not so
compensated solely because one of the exclusions in Clause 14.3(b)
applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the breach by the relevant Finance Party or its
Affiliates of any law or regulation.
(b) In this Clause 15.3, a reference to a "TAX DEDUCTION" has the same
meaning given to the term in Clause 14.1 (Definitions).
16. OTHER INDEMNITIES
16.1 CURRENCY INDEMNITY
(a) If any sum due from an Obligor under the Finance Documents (a "SUM"), or
any order, judgment or award given or made in relation to a Sum, has to
be converted from the currency (the "FIRST CURRENCY") in which that Sum
is payable into another currency (the "SECOND CURRENCY") for the purpose
of:
(i) making or filing a claim or proof against that Obligor;
(ii) obtaining or enforcing an order, judgment or award in relation to
any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three (3)
Business Days of demand, indemnify each Finance Party to whom that Sum is
due against any cost, loss or liability arising out of or as a result of
the conversion including any discrepancy between (A) the rate of exchange
used to convert that Sum from the First Currency into the Second Currency
and (B) the rate or rates of exchange available to that person at the
time of its receipt of any amount paid to it in satisfaction, in whole or
in part, of such claim, proof, order, judgment or award.
59
(b) Each Obligor waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be payable.
16.2 OTHER INDEMNITIES
The Company shall (or shall procure that an Obligor will), within three
(3) Business Days of demand, indemnify each Finance Party against any
reasonable cost, loss or liability incurred by that Finance Party as a
result of:
(a) funding, or making arrangements to fund, its participation in a
Loan requested by a Borrower in a Utilisation Request but not made
by reason of the operation of any one or more of the provisions of
this Agreement (other than by reason of default or negligence by
that Finance Party alone);
(b) issuing, or making arrangements to issue the Letter of Credit but
not issued by reason of the operation of any one or more of the
provisions of this Agreement; or
(c) any Outstandings (or part of any Outstandings) not being prepaid
in accordance with a notice of prepayment given by a Borrower.
16.3 INDEMNITY TO THE FACILITY AGENT AND THE SECURITY AGENT
The Company shall promptly indemnify the Facility Agent and the Security
Agent against any cost, loss or liability incurred by the Facility Agent
or the Security Agent (in each case acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default;
(b) (in the case of the Facility Agent) entering into or performing
any foreign exchange contract for the purposes of Clause 6 (Change
of Currency); or
(c) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
17. MITIGATION BY THE LENDERS
17.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which
would result in any amount becoming payable under, or cancelled pursuant
to, any of Clause 9.1 (Illegality), Clause 14 (Tax Gross-Up and
Indemnities) or Clause 15 (Increased Costs) including (but not limited
to) transferring its rights and obligations under the Finance Documents
to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of any
Obligor under the Finance Documents.
17.2 LIMITATION OF LIABILITY
(a) The Company shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by
it under Clause 17.1 (Mitigation).
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(b) A Finance Party is not obliged to take any steps under Clause 17.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it or any of its
Affiliates.
18. COSTS AND EXPENSES
18.1 TRANSACTION EXPENSES
Unless and to the extent agreed otherwise, the Company shall promptly on
demand pay to the Documentation Agent, the Facility Agent, the Security
Agent and the Mandated Lead Arrangers the amount of all costs and
expenses (including legal fees) reasonably incurred by any of them in
connection with the negotiation, preparation, printing, execution,
syndication and performance of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
18.2 AMENDMENT COSTS
If:
(a) an Obligor requests an amendment, waiver or consent; or
(b) an amendment is required pursuant to Clause 31.9 (Change of
Currency),
the Company shall, within three (3) Business Days of demand, reimburse
the Documentation Agent, the Facility Agent and the Security Agent for
the amount of all costs and expenses (including legal fees) reasonably
incurred by the Facility Agent or the Security Agent, as the case may be,
in responding to, evaluating, negotiating or complying with that request
or requirement.
18.3 ENFORCEMENT COSTS
The Company shall, within three (3) Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
reasonably incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
18.4 SECURITY AGENT EXPENSES
The Company shall promptly on demand pay to the Security Agent the amount
of all costs and expenses (including legal fees) reasonably incurred by
the Security Agent (for its own account and that of any Finance Party) in
connection with the constitution, administration or release of any of the
Transaction Security.
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SECTION 7
GUARANTEE
19. GUARANTEE AND INDEMNITY
19.1 GUARANTEE AND INDEMNITY
Subject to Clause 19.9 (Limitations for German Guarantors) to Clause
19.15 (Limitations for Canadian Guarantors) inclusive, each Guarantor
irrevocably and unconditionally jointly and severally:
(a) guarantees (garantiert) to each Finance Party punctual performance
by each Borrower of all that Borrower's obligations under the
Finance Documents;
(b) undertakes with each Finance Party that whenever an Obligor does
not pay any amount when due under or in connection with any
Finance Document, that Guarantor shall immediately on demand pay
that amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal. The amount of the cost, loss or liability shall be
equal to the amount which that Finance Party would otherwise have
been entitled to recover.
19.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
19.3 REINSTATEMENT
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for
those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from each Obligor, as if the
payment, discharge, avoidance or reduction had not occurred.
19.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 19 will not be
affected by an act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice any of its obligations under this
Clause 19 (without limitation and whether or not known to it or any
Finance Party) including:
62
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of any
member of the Group;
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Obligor or other
person or any non-presentation or non-observance of any formality
or other requirement in respect of any instrument or any failure
to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality of
or dissolution or change in the members or status of an Obligor or
any other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
19.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or the Facility Agent on its behalf) to
proceed against or enforce any other rights or security or claim payment
from any person before claiming from that Guarantor under this Clause 19.
This waiver applies irrespective of any law or any provision of a Finance
Document to the contrary.
19.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or the Facility Agent on its
behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
Facility Agent on its behalf) in respect of those amounts, or
apply and enforce the same in such manner and order as it sees fit
(whether against those amounts or otherwise) and no Guarantor
shall be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of any Guarantor's liability
under this Clause 19.
19.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full and unless the Facility Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
63
(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents by
any Finance Party.
19.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance
Party.
19.9 LIMITATIONS FOR GERMAN GUARANTORS
(a) Each Finance Party agrees that the enforcement of the guarantee and
indemnity pursuant to this Clause 19, and any Security provided by a
Guarantor pursuant to the terms of the Security Documents, other than in
respect of Loans made available to such Guarantor or to a Subsidiary of
such Guarantor by a Lender, or by another Obligor from the proceeds of
Loans, shall be limited, in relation to any Obligor (other than the
Company) which is a German limited liability company (Gesellschaft mit
beschrankter Haftung - GmbH) (a "GERMAN OBLIGOR"), to the extent that
payment under that guarantee and indemnity, or the enforcement of the
Security, would cause the higher of (i) the German Obligor's net assets
(including, for the avoidance of doubt, the amount corresponding to such
German Obligor's registered share capital (Stammkapital)) as per the date
of this Agreement minus 10% (the "BASE NET ASSETS") and (ii) the German
Obligor's net assets (including, for the avoidance of doubt, the amount
corresponding to such German Obligor's Stammkapital) as per the end of
the calendar month preceding the date of enforcement of this guarantee
and indemnity or of any Security (the "CURRENT NET ASSETS") to fall below
its Stammkapital PROVIDED THAT for the purposes of the calculation of the
Base Net Assets and the Current Net Assets the following balance sheet
items shall be adjusted as follows:
(i) the amount of any increase of the Stammkapital of the relevant
German Obligor after the date of this Agreement shall be deducted
from the relevant Stammkapital;
(ii) loans provided to the relevant German Obligor (or to any direct or
indirect Subsidiary of such German Obligor) by any member of the
Group shall be disregarded if and to the extent such loans have
been made from funds made available to a German Obligor pursuant
to the terms of this Agreement, or are subordinated, or are
considered subordinated pursuant to Sec. 32a GmbHG; and
(iii) loans and other liabilities incurred in violation of the
provisions of this Agreement shall be disregarded,
and FURTHER PROVIDED THAT the relevant German Obligor shall for the
purposes of the determination of the Base Net Assets and the Current Net
Assets dispose of all assets where the relevant assets are shown in the
balance sheet of the German Obligor with a book value (Buchwert) which is
significantly lower than the market value of such assets. The above
limitations shall not apply if following notification by a Finance Party
of claims raised under the guarantee and indemnity pursuant to this
Clause 19, or of the enforcement of Security by such Finance Party, the
relevant German Obligor does not provide conclusive evidence, including
in particular interim financial statements up to the end of the last
completed calendar month (which shall be audited if reasonably requested
by the Facility
64
Agent), within twenty five (25) days after the date of such notification,
or if after receipt of such unaudited statements notification is given to
the relevant German Obligor to provide audited financial statements up to
the end of that same calendar month and such audited financial statements
are not provided within fifty (50) days after the date of such
notification.
(b) Each German Obligor may at any time request by giving written notice to
the Facility Agent that the amount of the Base Net Assets relevant for
the purpose of Clause 19.9 (a) is reduced to an amount (the "REDUCED
AMOUNT") corresponding to the amount of such German Obligor's actual net
assets (to be determined as set out in para. (a) above), less or plus, as
the case may be, any decrease or increase to be reasonably expected in
the course of a period of one Month from the date of receipt by the
Facility Agent of the notice (the "NOTICE PERIOD"). Together with any
such written request, the relevant German Obligor shall provide the
Facility Agent with reasonable evidence (substantially applying the
rules applicable for setting up a statement of overindebtedness
("{U"}berschuldungsstatus")) showing the German Obligor's net assets
position (to be determined as set out in para. (a) above), and shall
further provide the Facility Agent with a written confirmation setting
out the German Obligor's projected net assets as per the end of the
Notice Period and stating the reasons therefor in reasonable detail. Upon
the lapse of the Notice Period, the Base Net Assets shall be deemed to
correspond to the Reduced Amount, unless the Lenders have terminated this
Agreement in accordance with the provisions of this Agreement and
notified the respective German Guarantor thereof before the lapse of such
Notice Period.
19.10 LIMITATIONS FOR AUSTRIAN OBLIGORS
(a) Each Guarantor established in Austria ("AUSTRIAN GUARANTOR") acknowledges
that:
(i) it will receive valuable direct or indirect benefits as a result
of the Facilities or Subfacilities made available under this
Agreement;
(ii) the Borrowers of the Facilities shall pay to each Austrian
Guarantor an adequate and arm's length annual fee for granting the
guarantee under this Clause 19;
(iii) each Finance Party has acted in good faith in connection with the
guarantee given by that Austrian Guarantor and the transactions
contemplated by the Finance Documents; and
(iv) it has not incurred and does not intend to incur debts, including
contingent liabilities beyond its ability to pay as they mature.
(b) Notwithstanding anything to the contrary contained herein or any other
Finance Document the liability of each Austrian Guarantor:
(i) shall be limited to funds applied by the Borrowers for the
valuable direct or indirect benefits of the Austrian Guarantors;
and
(ii) shall be limited to an amount of:
(A) the Future Additional Net Asset Value of that Austrian
Guarantor; in addition, if applicable,
65
(B) the equivalent in Euro of the aggregate Utilisations (plus
accrued interest commission and fee thereon) on-lent to the
respective Austrian Guarantor calculated by the Facility
Agent on the date which Utilisation(s) are made.
For the purposes of this Clause 19.10 "FUTURE ADDITIONAL NET
ASSET VALUE"means the future increase of the value of the balance
sheet positions "Eigenkapital" (as defined under the provisions of
Austrian accounting laws, currently Art. 224 sec. 3 lit A Austrian
Commercial Code) as of the date of the execution of this Agreement
(the "REFERENCE NET ASSET VALUE") as opposed to the value of this
balance sheet position on the day of the payment demand under the
Guarantee pursuant to this Clause 19. An interim financial
statement of that Austrian Guarantor established upon the date of
the execution of this Agreement and certified by the statutory
auditors of that Austrian Guarantor shall be prima facie evidence
as to the amount of the Reference Net Asset Value.
(c) Each Austrian Guarantor shall procure to record its potential obligation
under its guarantee and indemnity pursuant to this Clause 19 in its
financial statements to be established after the execution of this
Agreement or its Accession to this Agreement, respectively, pursuant to
Art. 199 Austrian Commercial Code.
(d) Each Austrian Guarantor agrees that the benefit of this guarantee and
indemnity shall be transferred and shall remain in full legal effect when
an Existing Lender (as defined in Clause 25 (Changes to Lenders) seeks to
transfer its rights and obligations under the Finance Documents by
assignment or by novation to a New Lender pursuant to Clause 25 (Changes
to Lenders).
19.11 LIMITATIONS FOR FRENCH OBLIGORS
[TO BE AGREED UPON ACCESSION OF A FRENCH OBLIGOR]
[(a) Each Guarantor organised under the laws of France (a "FRENCH GUARANTOR")
acknowledges that
(i) [it has not incurred and does not intend to incur debts, including
contingent liabilities beyond its ability to pay as they mature];
(ii) the guarantee and indemnity has been authorised by the
administration council before the contract had been signed as
defined in article L 225-35 of the French Commercial Code and
article 89, 90 of the decree n* 67-236 from 23rd march 1967 (if the
French Guarantor is a joint stock company);
(iii) the guarantee and indemnity has been authorised by the
administration council (in case of the joint stock company) or the
assembly of the partners (in case of a limited company) if such an
authorisation is necessary according to article L 225-38 and article
L 223-19 French Commercial Code.
(b) The liability of each French Guarantor under this Clause 19.11 (A) shall
not include any obligation which does not present an economic, social or
financial interest for the entire group, (B) shall be limited to funds
applied by the Borrowers for the valuable direct or indirect benefits of
the French Guarantors; (C) shall not include any obligation which is
contrary to the statutory object of the French Guarantor, (D) shall not
include any obligation which if incurred would constitute the provision
of financial assistance as defined by article
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L 225-216 of the French Commercial Code and (E) shall be limited at any
time to the greater of:
(aa) the equivalent to Euros of the Loans (plus any accrued interest
thereon, commissions and fees) made available to any Obligor (other than,
if applicable, the French Guarantor) to the extent directly or indirectly
on-lent to the French Guarantor calculated by the Facility Agent on the
date on which such Loan(s) are made, to the extent that such Loan(s) have
been on lent by such Obligor to the French Guarantor; and
(bb) [80]/[60]% of the greater of:
(i) the Net Asset Value of the French Guarantor calculated and
certified by the statutory auditors of the French Guarantor
on the basis of the last audited financial statements
available at the date hereof; and
(ii) the Net Asset Value of the French Guarantor calculated and
certified by the statutory auditors of the French Guarantor
on the basis of the last audited financial statements
available at the date on which demand is made on it pursuant
to Clause 18 (Guarantee).
For the purposes of this Clause 19.11(b) "NET ASSET VALUE" of the French
Guarantor means the capitaux propres (as defined under the provisions of
French accounting laws, decrees and regulations consistently applied) of
the French Guarantor. A certificate of the statutory auditors of the
French Guarantor as to the Net Asset Value shall be prima facie evidence
as to the amount to which it relates.]
19.12 LIMITATIONS FOR ITALIAN OBLIGORS
Each Finance Party agrees that the enforcement of the guarantee and
indemnity given pursuant to this Clause 19 by any Guarantor incorporated
in Italy (an "ITALIAN GUARANTOR") shall be limited as follows: each
Italian Guarantor shall not be liable for any amounts in respect of the
guarantee and indemnity pursuant to this Clause 19 in excess of an amount
of e 40,000,000.
19.13 LIMITATIONS FOR SPANISH OBLIGORS
Each Finance Party agrees that the guarantee, indemnity and any other
obligations of each Guarantor incorporated in Spain (a "SPANISH
GUARANTOR") assumed under this Agreement and any Security provided
pursuant to the terms of this Agreement by a Spanish Guarantor shall not
include and shall not extend to any amount of the Facilities utilised in
breach of Article 81.1 of Spanish Corporation's Act ("Ley de Sociedades
An{o'}nimas") to fund the acquisition of such Spanish Guarantor and/or
the acquisition of its dominant company and/or future upstream dominant
companies, together with interest accrued thereon or other amounts owing
in respect thereof under this Agreement..
19.14 LIMITATIONS FOR US OBLIGORS
(b) Each Finance Party agrees that the enforcement of the Guarantee and
Indemnity pursuant to this Clause 19, and any Security provided by a
Guarantor organized under the laws of a state of the United States of
America (a "U.S. GUARANTOR") pursuant to the terms of this Agreement,
other than in respect of Loans made available to such U.S. Guarantor or to
a Subsidiary of such U.S. Guarantor by a Lender, or by another Obligor
from the proceeds of Loans, shall be limited, in relation to any U.S.
Guarantor, to an amount not to exceed the
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greater of (i) 95% of the Adjusted Net Assets (as defined below) of such
U.S. Guarantor on the date of delivery of this Agreement and (ii) 95% of
the Adjusted Net Assets of such U.S. Guarantor on the date of any payment
under or pursuant to the terms of this Agreement.
(c) "ADJUSTED NET ASSETS" of any U.S. Guarantor at any date means the greater
of (i) the amount by which the fair value of the property and assets of
such U.S. Guarantor exceeds the aggregate amount of liabilities of such
U.S. Guarantor, including, without limitation, contingent liabilities, but
excluding liabilities under this Clause 19 at such date, and (ii) the
amount by which the present fair salable value of the property and assets
of such U.S. Guarantor at such date exceeds the amount that will be
required to pay the probable liabilities of such U.S. Guarantor on its
debts (excluding debt in respect of this Clause 19) as such debts become
absolute and matured.
19.15 LIMITATIONS FOR CANADIAN OBLIGORS
Each guarantor organised under the federal laws of Canada or any of the
Provinces of Canada (a "CANADIAN GUARANTOR") hereby acknowledges, being a
direct or indirect subsidiary of the Company, that it will be receiving a
direct and indirect benefit from the Loans being provided to the Company
and the other Borrowers, and hereby acknowledges and confirms that it is
providing the guarantee contained herein in consideration of such direct
or indirect benefit, and for other good and valuable consideration.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTTIONS
20.1 REPRESENTATION AND WARRANTIES
(a) On the date of this Agreement, the Company (in respect of its own
affairs, each member of the Group and each Original Obligor) and, on
the date of its accession to this Agreement, each Additional Obligor
(in respect of its own affairs and those of its Subsidiaries) makes
the representations and warranties set out in this Clause 20 to each
Finance Party.
(b) The Obligors acknowledge that the Finance Parties have entered into
this Agreement in reliance on these representations and warranties.
20.2 STATUS
(a) It is a corporation or limited partnership, duly incorporated or
formed and validly existing under the law of the jurisdiction of its
place of incorporation or its seat.
(b) It has the power to own its assets and carry on its business as it
is currently being conducted.
20.3 NO WINDING-UP
No administrator, receiver, insolvency trustee, examiner, liquidator or
similar officer or official has been appointed with respect to it or any
of its assets and (to the best of its
68
knowledge and belief) no petition by a third party or proceeding for any
such appointment is pending nor has any resolution for any such
appointment been passed.
20.4 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document to
which it is a party are, subject to any general principles of law
limiting its obligations which are specifically referred to in any legal
opinion delivered pursuant (i) to Clause 4 (Conditions of Utilisation) or
(ii) Clause 26 (Changes to the Obligors) and (iii) the conditions
precedent set forth in the Finance Documents, legal, valid, binding and
enforceable obligations.
20.5 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents to which it is a party do not and
will not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents;
(c) any agreement or instrument binding upon it or any of its assets,
nor (except as provided in any Security Documents) result in the creation
of, or oblige it to create, any Security (other than Permitted Security)
over any of its assets.
20.6 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents. No limit on its powers will be
exceeded as a result of such entry, delivery or performance.
20.7 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which it
is a party;
(b) to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation;
(c) to enable it to own its material assets and carry on its business
as it is being conducted; and
(d) to enable it to create any Security expressed to be created by it
by or pursuant to, or as the case may be, any Security expressed
to have been created by it and to be evidenced in, any Security
Document and to ensure that such Security has the priority and
ranking it is expressed to have,
have (save for any filings or registrations required in relation to the
Security Documents, which filings or registrations will be made promptly
after execution of the relevant documents and in any event within
applicable time limits) been obtained or effected and are in full force
and effect.
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20.8 GOVERNING LAW AND ENFORCEMENT
(a) The choice of German law as the governing law of the Finance
Documents (or, in respect of any Security Document to which it is a
party, the choice of the relevant governing law of that Security
Document) will be recognised and enforced in its jurisdiction of
incorporation.
(b) Any judgment obtained in the Federal Republic of Germany in relation
to a Finance Document (or, in respect of any Security Document to
which it is a party, any judgment obtained in the courts which are
expressed to have jurisdiction to hear disputes under that Security
Document) will be recognised and enforced in its jurisdiction of
incorporation.
20.9 DEDUCTION OF TAX
It is not required under the law of its jurisdiction of incorporation to
make any deduction for or on account of Tax from any payment it may make
under any Finance Document.
20.10 NO FILING OR STAMP TAXES
It is not necessary that the Facilities Agreement be filed, recorded or
enrolled with any court or other authority in any jurisdiction where an
Obligor is domiciled or that any stamp, registration or similar tax be
paid on or in relation to the Facilities Agreement or the transactions
contemplated therein.
20.11 NO DEFAULT AND NO MATERIAL ADVERSE EFFECT
(a) No Event of Default is continuing or might reasonably be expected to
result from the making of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding on
it or to which its assets are subject which might have a Material
Adverse Effect.
(c) No Material Adverse Effect has occurred since the date of
submission of the latest financial statements pursuant to Clause
21.1(b).
20.12 INFORMATION
Any written information provided, by the Company on its own behalf or on
behalf of any member of the Group, to any Finance Party in connection
with the Finance Documents was true and accurate in all material respects
as at the date it was provided or as at the date (if any) at which it is
stated and is not untrue or misleading in any material respect.
20.13 GOOD TITLE TO ASSETS
Except in relation to certain toll manufacturing equipment, it has,
subject to Permitted Security, good and marketable title to or valid
leases or licenses of or is otherwise entitled to use all material assets
necessary to carry on its business as it is being conducted.
20.14 INTELLECTUAL PROPERTY RIGHTS
(a) It owns or has licensed to it all the Intellectual Property Rights
which are required by it in order for it to carry on its business in
all material respects as it is currently
70
being conducted (the "MATERIAL IPR") and, to the best of its
knowledge and belief, it does not, in carrying on its business,
infringe any Intellectual Property Rights of any third party in any
material respect.
(b) It has taken all formal or procedural actions (including payment of
fees) required to maintain in full force and effect any registered
Material IPR owned by it.
(c) It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its Intellectual Property which might
reasonably be expected to have a Material Adverse Effect.
20.15 CREATION OF SECURITY
(a) It is, or upon the execution (and the fulfilment of any conditions
included therein) of the Security Documents to which it is a party
will be, subject to any Permitted Security, the absolute legal and
beneficial owner of all the material assets over which it purports
to create Security by or pursuant to or as evidenced in the Security
Documents.
(b) Subject to any general principles of law limiting its obligations
which are specifically referred to in any legal opinion delivered
pursuant (i) to Clause 4 (Conditions of Utilisation) or (ii) Clause
26 (Changes to the Obligors) and (iii) the conditions precedent set
forth in the Finance Documents, each Security Document to which it
is or is to be a party creates, or upon such execution will create,
the Security which that Security Document purports to create or, if
that Security Document purports to evidence Security, accurately
evidences, or upon such execution will so evidence, Security which
has been validly created.
20.16 PENSION SCHEMES
Each member of the Group is in compliance with all applicable laws and
contracts relating to the pension schemes (if any) for the time being
operated by it or in which it participates and each such pension scheme
is adequately provided for (either by way of being funded or by way of
provision in the balance sheet) based on reasonable actuarial assumptions
applicable to the jurisdiction in which the relevant pension scheme is
maintained and administered and funded in accordance with applicable law.
20.17 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its unsecured and unsubordinated creditors
except for obligations mandatorily preferred by law applying to companies
generally.
20.18 INTRA-GROUP LOANS
Other than the existing Intra-Group Loans and similar financial
arrangements set out in Schedule 16 (Existing Intra-Group Loans) there
are no other Intra-Group Loans.
20.19 NO PROCEEDINGS PENDING OR THREATENED
(a) Subject to paragraph (c) below, no litigation, arbitration or
administrative proceedings of or before any court, arbitral body or
agency which, if adversely
71
determined, might reasonably be expected to have a Material Adverse
Effect have been started or (to the best of its knowledge and
belief) threatened against it.
(b) No labour disputes, which might reasonably be expected to have a
Material Adverse Effect, have (to the best of its knowledge and
belief) been started or threatened against it.
(c) Other than the Existing Competition Law Proceedings as set out in
Schedule 15 (Existing Competition Law Proceedings and Anti-Trust
Lawsuits), no competition law related (i) civil litigation, civil
lawsuits or other civil proceedings of or before any court have been
started in accordance with the applicable procedural rules or (to
the best of its knowledge and belief) threatened in any relevant
jurisdiction against any member of the Group which, if adversely
determined, might reasonably be expected to have a Material Adverse
Effect nor have (ii) any fines in the aggregate amount exceeding e
2,500,000 been assessed by way of any administrative proceedings by
the relevant authorities nor have (iii) any fines in the aggregate
amount exceeding the existing fines of e 80,200,000 and additional e
27,750,000 by at least e 2,500,000 in relation to the Existing
Competition Law Proceedings identified in Schedule 15 No. I been
assessed by way of any administrative proceedings by the relevant
authorities.
20.20 ENVIRONMENTAL COMPLIANCE
(a) It and each of its Subsidiaries has obtained all requisite
Environmental Licences required for the carrying on of its business
as currently conducted and has at all times complied with:
(i) all applicable Environmental Laws;
(ii) the terms and conditions of such Environmental Licences; and
(iii) all other covenants, conditions, restrictions and agreements
directly or indirectly concerned with any Environmental
Contamination,
where failure to do so might have a Material Adverse Effect.
There are to its knowledge no circumstances which may prevent or
interfere in any material respect with the compliance in the
future of it and each of its Subsidiaries with all applicable
Environmental Laws, the terms of all Environmental Licences
referred to in paragraph (a) above and all covenants, conditions,
restrictions and agreements referred to in such paragraph.
20.21 ENVIRONMENTAL CLAIMS
No Environmental Claim has been started or (to the best of its knowledge
and belief) threatened against it or any of its Subsidiaries which might
reasonably be expected to have a Material Adverse Effect.
20.22 TAXATION
(a) It has duly and punctually paid and discharged all Taxes imposed
upon it or its assets within the time period allowed without
incurring penalties (save to the extent that: (i) payment is being
contested in good faith, (ii) adequate reserves are being
72
maintained for those Taxes and (iii) payment can be lawfully
withheld; or failure to pay is caused by administrative or technical
error that is remedied as soon as possible after receipt of
notification thereof from the relevant Tax authorities).
(b) It is not materially overdue in the filing of any Tax returns.
(c) No claims are being or are likely to be asserted against it with
respect to Taxes which might reasonably be expected to have a
Material Adverse Effect.
20.23 NO INDEBTEDNESS
It has:
(i) no Financial Indebtedness (other than Permitted
Indebtedness); and
(ii) no other indebtedness, except for any which has been
incurred in the ordinary course of its business.
20.24 NO SECURITY OR GUARANTEES
(a) Save for any Permitted Security:
(i) no Security exists over all or any of its assets; and
(ii) no arrangement or transaction as described in Clause 23.3(b)
has been entered into by it and is outstanding.
(b) Save for any Permitted Guarantees or Contingent Liabilities, it has
not granted or agreed to grant any guarantee.
20.25 NO IMMUNITY
In any proceedings taken in its jurisdiction of incorporation in relation
to any Finance Document to which it is a party, it will not be entitled
to claim for itself or any of its assets any immunity from suit,
execution, attachment or other legal process.
20.26 INFORMATION MEMORANDUM
(a) The Information Memorandum is not misleading in any material
respects and all factual information provided by or on behalf of any
Obligor to the Mandated Lead Arrangers
was true and accurate at the date it was provided or as at the
date at which it is stated.
(b) There is no expression of opinion, forecast or projection contained
in the Information Memorandum or conclusion reached in the
Information Memorandum which is not fair and reasonable in all
material respects and all expressions of opinion, forecasts, and
projections provided by or on behalf of any Obligor to the Mandated
Lead Arrangers
were arrived at after careful consideration, were fair and were based on
reasonable grounds.
73
(c) Nothing has occurred or been omitted from the Information Memorandum
and no information has been given or withheld that results in the
information contained in the Information Memorandum being untrue or
misleading in any material respect.
(d) Nothing has occurred or been omitted from the Information Memorandum
and no information has been given or withheld that results in the
opinions, forecasts, projections and conclusions contained in the
Information Memorandum being other than fair and reasonable in all
material respects.
20.27 BASE FINANCIAL STATEMENTS
(a) The Base Financial Statements:
(i) were prepared in accordance with IAS or the Relevant GAAP
consistently applied; and
(ii) (in the case of the unaudited 9 months consolidated interim
financial statements of 2002 of the Company) fairly
represent the financial condition and operations of the
Group as at the date to which they were prepared and during
the relevant financial period for which they were prepared,
subject to normal year end adjustments, and take account of
all material liabilities (contingent or otherwise), and all
unrealised or anticipated losses, of the Group as at the
date to which they were prepared.
(b) There has been no material adverse change in the business or
financial condition of any Original Obligor since the date to which
the latest of the Base Financial Statements was prepared.
(c) The financial year of the Group is the calendar year.
20.28 BUDGETS
(a) It:
(i) regards (as at the date that the most recent Budget is
delivered to the Facility Agent under Clause 21.4 (Budgets))
as neither unreasonable, nor to any material extent
unattainable, any of the forecasts or projections set out in
that Budget;
(ii) believes (after having made all reasonable enquiries) that
the assumptions, upon which the forecasts and projections
relating to the Group contained in the most recent Budget
delivered under Clause 21.4 (Budgets) are based, are fair
and reasonable; and
(iii) has made full disclosure of all material facts relating to
the Group to all the persons responsible for the preparation
of each Budget.
20.29 GROUP STRUCTURE CHART
(a) The Group Structure Chart contains descriptions which in all
material respects are true, complete and correct of the corporate
ownership structure of the Group as it will be immediately after
Closing, including details of:
(i) all Subsidiaries, direct or indirect, of the Company;
74
(ii) all minority shareholdings in any member of the Group held
by any person who is not a member of the Group;
(iii) all companies, partnerships and Joint Ventures in which any
member of the Group has an interest or participation; and
(iv) all Intra-Group Loans in an amount of more than e 1,000,000
which are not merely temporary trading balances,
in each case as they will be immediately after Closing.
(b) There are no re-organisational steps relating to the corporate
ownership structure of the Group contemplated at the date of this
Agreement (including, without limitation, any significant transfers
of businesses or assets from one member of the Group to another)
which are not reflected in the Group Structure Chart.
(c) All re-organisational steps resulting in the Group corporate
ownership structure set out in the Group Structure Chart have been
or will be taken in compliance in all material respects with all
relevant laws and regulations and all requirements of all relevant
regulatory authorities.
20.30 ISSUE OF SHARE CAPITAL
Except for the Management and Employee Benefit Plans, the Hitco Options
and the conversion rights under the convertible bonds issued by the
Company in September 2000, there are no agreements in force or corporate
resolutions passed which call for the present or further issue or
allotment of, or grant to any person the right (whether conditional or
otherwise) to call for the issue or allotment of, any share, partnership
interest, loan note or loan capital of any member of the Group (including
an option or right of pre-emption or conversion).
20.31 ERISA AND MULTIEMPLOYER PLANS
(a) Neither any US Group Member nor any ERISA Affiliate is making or
accruing an obligation to make contributions or has within any of
the five calendar years immediately preceding the date of this
Agreement made or accrued an obligation to make contributions to any
Multiemployer Plan to an extent or in a manner which might
reasonably be expected to have a Material Adverse Effect.
(b) Each Employee Plan is in compliance in all material respects in form
and operation with ERISA and the Code and all other applicable laws
and regulations.
(c) Each Employee Plan which is intended to be qualified under section
401(a) of the Code has been determined by the IRS to be so qualified
or is in the process of being submitted to the IRS for approval or
will be so submitted during the applicable remedial amendment
period, and, to the knowledge of the Company, nothing has occurred
since the date of such determination that would adversely affect
such determination (or, in the case of an Employee Plan with no
determination, nothing has occurred that would adversely affect such
qualification).
(d) The fair market value of the assets of each Employee Plan subject to
Title IV of ERISA is at least equal to the present value of all
accumulated benefit obligations under such Employee Plan (based on
the assumptions used for the purposes of
75
Statement of Financial Accounting No. 87) as of the date of the most
recent financial statement reflecting such amounts or, if additional
contributions are required to make such Employee Plan sufficient,
the Company does not believe that such might reasonably be expected
to have a Material Adverse Effect.
(e) There are no material actions, suits or claims pending against an
Employee Plan (other than routine claims for benefits), or (to the
knowledge of the Company, any US Group Member or any ERISA
Affiliate) threatened, which might reasonably be expected to be
asserted successfully against any Employee Plan.
(f) Each US Group Member and any ERISA Affiliate has made all material
contributions to or under each such Employee Plan required by law
within the applicable time limits prescribed by law, by the terms of
such Employee Plan, or by any contract or agreement requiring
contributions to an Employee Plan.
(g) Neither any US Group Member nor any ERISA Affiliate has ceased
operations at a facility so as to become subject to the provisions
of section 4068(a) of ERISA, withdrawn as a substantial employer so
as to become subject to the provisions of section 4063 of ERISA or
ceased making contributions to any Employee Plan subject to section
4064(a) of ERISA to which it made contributions.
(h) Neither any US Group Member nor any ERISA Affiliate has incurred or
reasonably expects to incur any material liability to PBGC.
20.32 MARGIN STOCK
(a) No US Group Member is engaged principally, or as one of its
important activities, in the business of owning or extending credit
for the purpose of purchasing or carrying any Margin Stock.
(b) The Facilities will not be used, directly or indirectly, for any
purpose which might constitute all or any part of the Facilities a
"purpose credit" within the meaning of Regulation U or Regulation X.
(c) No US Group Member or any Facility Agent acting on its behalf has
taken or will take any action which might cause the Finance
Documents to violate any regulation of the Board of Governors of the
Federal Reserve System of the United States.
20.33 INVESTMENT COMPANIES
No US Group Member is subject to regulation under the United States
Public Utility Holding Company Act of 1935 or the United States
Investment Company Act of 1940 or any United States federal or state
statute or regulation limiting its ability to incur indebtedness.
20.34 TIME FOR MAKING REPRESENTATIONS AND WARRANTIES
(a) The representations and warranties set out in this Clause 20 are
made:
(i) in the case of an Obligor which is a Party on the date of
this Agreement, by that Obligor on that date, the date of
the first Utilisation Request under this Agreement and the
first Utilisation Date; and
76
(ii) in the case of an Obligor which becomes a Party after the
date of this Agreement, by that Obligor on the day on which
it becomes an Additional Obligor.
(b) The Repeating Representations are deemed to be made by each Obligor
to each Finance Party by reference to the facts and circumstances
then existing on each of the following days or dates:
(i) (other than in respect of Utilisations on the first
Utilisation Date) the date of each Utilisation Request, the
first day of each Interest Period and on each Quarter Date
throughout the Term of the Letter of Credit; and
(ii) the day on which a company becomes or it is proposed that a
company becomes an Additional Obligor.
21. INFORMATION UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
21.1 FINANCIAL STATEMENTS
The Company shall supply to the Facility Agent in sufficient copies for
all the Lenders:
(a) as soon as the same become available, but in any event within one
hundred and twenty (120) days after the end of each of its
financial years:
(i) its audited consolidated and unconsolidated financial
statements for that financial year; and
(ii) at the request of the Facility Agent, the financial
statements of each Obligor (audited where audited financial
statements are available) for that financial year;
each comprising of its respective balance sheet, profit and loss
account and cash flow statement; and
(b) as soon as the same become available, but in any event within
ninty (90) days after the end of each Financial Quarter in each of
its financial years, its unaudited consolidated financial
statements (in a form satisfactory to the Facility Agent) for that
Financial Quarter comprising of its balance sheet, profit and loss
account and cash flow statement, together with a description of
the business, market and financial developments of the Company and
each Obligor.
21.2 COMPLIANCE CERTIFICATE
(a) The Company shall supply to the Facility Agent, with each set of
financial statements delivered pursuant to Clause 21.1(a)(i) or (b)
(Financial Statements), a Compliance Certificate setting out (in
reasonable detail), in each case as at the date to which those
financial statements were drawn up:
(i) computations as to compliance with Clause 22 (Financial
Covenants);
77
(ii) (in the case of a Compliance Certificate accompanying
audited financial statements) computations:
(A) establishing the amount of Excess Cash Flow (if any)
for the purpose of Clause 9.5 (Mandatory Prepayments
from Excess Cash), together with a calculation of how
that amount has been determined; and
(B) establishing calculations with respect to any Margin
reductions for the purpose of Clause 10.2 (Margin
Ratchets);
(iii) in the case of the annual audited consolidated financial
statements by the Company's auditors, a confirmation that
the Minimum Guarantor Coverage (as defined in Clause 22.5
(Minimum Guarantor Coverage)) has been met as per the
relevant balance sheet date; and
(iv) (in the case of a Compliance Certificate accompanying
unaudited quarterly financial statements) computations with
respect to any margin reductions for the purpose of Clause
10.2 (Margin Ratchets) and a list of all Material
Subsidiaries.
(b) The Company shall ensure that each Compliance Certificate shall be
signed by two directors of the Company and, if required to be
delivered with the financial statements delivered pursuant to Clause
21.1(a)(i), by the auditors that certified such statements.
21.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Company pursuant
to Clause 21.1(a) shall be audited and certified without material
qualification by an internationally recognised firm of independent
auditors approved by the Facility Agent.
(b) Each set of financial statements delivered by the Company pursuant
to Clause 21.1 (Financial Statements) shall be certified by two
directors or, as the case may be, two members of the management
board of the Company or relevant Obligor as fairly representing its
financial condition as at the date as at which those financial
statements were drawn up.
(c) Each set of financial statements delivered by the Company pursuant
to Clause 21.1(b) shall be in such form as the Facility Agent may
reasonably require and shall include a comparison of actual
performance with the performance projected by the relevant Budget
for the period to which those financial statements relate, as well
as a comparison with the preceding year, and shall provide
management commentary explaining any differences in such performance
and any material developments or proposals affecting the Group or
its business.
(d) The Company will ensure that each set of financial statements
delivered by it pursuant to Clause 21.1 (Financial Statements) is
prepared using the IAS and accounting practices and financial
reference periods consistent with those applied in the preparation
of the Base Financial Statements unless, in relation to any set of
financial statements, it notifies the Facility Agent that such
financial statements have been prepared on a different basis as a
result of a change in accounting
78
principles and its auditors (being an internationally recognised
firm of independent auditors approved by the Facility Agent) deliver
to the Facility Agent:
(i) a description of any change necessary for those financial
statements to reflect the IAS, accounting practices and
reference periods upon which the Base Financial Statements
were prepared; and
(ii) sufficient information, in form and substance as may be
reasonably required by the Facility Agent, to enable the
Lenders to determine whether Clause 22 (Financial Covenants)
has been complied with and to establish any of the other
matters referred to in Clause 21.2 (Compliance Certificate)
and to make an accurate comparison between the financial
position indicated in those financial statements and the
Base Financial Statements.
Any reference in this Agreement to those financial statements
shall be construed as a reference to those financial statements as
adjusted to reflect the basis upon which the Base Financial
Statements were prepared.
(e) If the Company notifies the Facility Agent of a change in accordance
with paragraph (d) above then the Company and Agent shall enter into
negotiations in good faith with a view to agreeing:
(i) whether or not the change might result in any material
alteration in the commercial effect of any of the terms of
this Agreement; and
(ii) if so, any amendments to this Agreement which may be
necessary to ensure that the change does not result in any
material alteration in the commercial effect of those terms,
and if any amendments are agreed they shall take effect and
be binding on each of the Parties in accordance with their
terms.
21.4 BUDGETS
(a) The Company shall, as soon as the same becomes available and in any
event no later than three (3) Months after to the commencement of
each financial year of the Group, deliver to the Facility Agent in
sufficient copies for the Lenders a budget for that financial year
and the following three (3) financial years (together, the
"FINANCIAL YEARS UNDER REVIEW") (in a form and showing such detailed
information as the Facility Agent may reasonably require) prepared
by reference to each Financial Quarter and including:
(i) forecasts of any projected disposals (including timing and
amount of any projected disposals) on a consolidated basis
of the Group for each Financial Year under Review;
(ii) projected profit and loss accounts (including projected
turnover and operating costs), broken down in respect of
operating profit before depreciation and amortisation in
different business units/divisions, and projected balance
sheets and cash flow statements, together with the main
operating assumptions relating to such projected financial
statements, on a quarterly basis, for each Financial Year
under Review on a consolidated basis for the Group;
79
(iii) revisions to the projections set out in the Budget and
actuals of the preceding year, together with the main
operating assumptions relating thereto, for each Financial
Year under Review, based on the financial condition and
performance and prospects of the Group at such time;
(iv) projected Capital Expenditure as defined in Clause 22.1
(Financial Definitions) to be incurred on a Financial
Quarter basis for the Financial Years under Review on a
consolidated basis for the Group; and
(v) projected Consolidated EBITDA as at the end of each
Financial Quarter.
(b) The Company shall provide the Facility Agent with details of any
material changes in the projections delivered under this Clause 21.4
as soon as reasonably practicable after it becomes aware of any such
change.
21.5 INFORMATION: MISCELLANEOUS
(a) The Company shall supply to the Facility Agent (in sufficient copies
for all the Lenders, if the Facility Agent so requests):
(i) all material documents dispatched by any member of the Group
to its shareholders (or any class of them) or by the Company
and its Material Subsidiaries to its creditors generally at
the same time as they are dispatched;
(ii) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which
are current, threatened or pending against any member of the
Group and which might, if adversely determined, have a
Material Adverse Effect and any details of any litigation or
administrative proceedings regarding competition law
proceedings and related civil lawsuits, including, for the
avoidance of doubt, any fines which have been assessed by
way of any administrative proceedings by the relevant
authorities, including details regarding the Existing
Competition Law Proceedings and Anti-Trust Lawsuits as
identified in Schedule 15;
(iii) in relation to each Financial Quarter, a status report
relating to the Existing Competition Law Proceedings signed
by the Company's in-house legal counsel;
(iv) promptly upon becoming aware of them, the details of any
labour dispute which is current, threatened or pending
against any member of the Group and which might, if
adversely determined, have a Material Adverse Effect;
(v) promptly upon becoming aware of them, the details of any
rating or, following the issuance of any such rating, any
change in an Obligor's credit rating by Xxxxx'x Investor
Services, Inc. or by Standard and Poor's Corporation;
(vi) promptly upon becoming aware of them, the details of any
proposed acquisition(s) in excess of e 10,000,000 per annum,
including, but not limited to:
80
(A) the provision of the target company's audited annual
financial statements;
(B) due diligence reports prepared in connection with such
acquisition(s); and
(C) pro forma projections for the Group after the
acquisition of the target company;
(vii) promptly upon becoming aware of them, the details on any
material change with regard to lines of credit exceeding in
each case e 1,000,000 granted by banks and/or financial
institutions other than the Lenders in relation to the
Facilities;
(viii)details of any change in the corporate ownership structure
of the Group from that set out in the Group Structure Chart;
and
(ix) promptly, such further information regarding the financial
condition, business and operations of any member of the
Group as any Finance Party (through the Facility Agent) may
reasonably request.
(b) The Company shall ensure that, upon receipt of reasonable notice,
senior management is available once a year for the purpose of a
meeting with the Lenders, the Facility Agent and the Documentation
Agent in relation thereto.
21.6 NOTIFICATION OF DEFAULT
(a) Each Obligor shall notify the Facility Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming
aware of its occurrence (unless that Obligor is aware that a
notification has already been provided by another Obligor).
(b) Promptly upon a request by the Facility Agent, the Company shall
supply to the Facility Agent a certificate signed by two of its
directors or senior officers on its behalf certifying that no
Default is continuing (or if a Default is continuing, specifying the
Default and the steps, if any, being taken to remedy it).
21.7 ERISA REPORTING REQUIREMENTS
(a) The Company shall procure that each US Group Member and each ERISA
Affiliate (each a "RELEVANT COMPANY") shall:
(i) promptly and in any event within thirty days after any
Relevant Company knows or has reason to know that any ERISA
Event which would reasonably be expected to have a Material
Adverse Effect has occurred; and
(ii) promptly and in any event within ten days after any Relevant
Company knows or has reason to know that a request for a
minimum funding waiver under section 412 of the Code has
been filed with respect to any Title IV Plan or
Multiemployer Plan,
deliver to the Facility Agent a written statement of the Chief
Financial Officer of the Company describing such ERISA Event or
waiver request and the action, if any,
81
that it proposes to take with respect thereto and a copy of any
notice filed with the PBGC or the IRS pertaining thereto.
(b) The Company shall procure that each US Group Member and each ERISA
Affiliate (each a "RELEVANT COMPANY") shall, simultaneously with the
date that any Relevant Company files a notice of intent to terminate
any Title IV Plan (if such termination would require material
additional contributions in order to be considered a standard
termination within the meaning of section 4041(b) of ERISA), deliver
to the Facility Agent a copy of such notice.
22. FINANCIAL COVENANTS
The covenants in this Clause 22 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
22.1 FINANCIAL DEFINITIONS
(a) In this Clause 22:
"APPROVED BANK" means any bank which is an authorised banking
institution under applicable legislation and whose debt securities
are rated at least A1 by Xxxxx'x Investor Services, Inc. or A+ by
Standard and Poor's Corporation or as the Facility Agent may
approve.
"CAPITAL EXPENDITURE" means any capital expenditure, including
expenditure for the acquisition of equipment, tangible fixed
assets, real property, intangible assets and other assets of a
capital nature or for the replacement or substitution therefor or
additions or improvements thereto.
"CASH" means:
(i) cash in hand;
(ii) any credit balance in Euro or any other currency on any
current, savings or deposit account with any Approved Bank
that is repayable on demand or upon not more than ninety
(90) days' notice; and
(iii) in relation to Term Facility B, any credit balance relating
to cash deposits made in relation to cancellations, but not
in relation to any capitalised interest accrued.
"CASH EQUIVALENTS" means:
(i) debt securities denominated in Euro or any other currency
which are not convertible into any other form of security,
rated or issued by any person rated A1 or better by Xxxxx'x
Investor Services, Inc. or A+ or better by Standard & Poor's
Corporation and not issued or guaranteed by any member of
the Group;
(ii) certificates of deposit denominated in Euro or any other
currency issued by, and acceptances so denominated by,
banking institutions authorised under applicable legislation
which at the time of making such issue or acceptances, have
outstanding debt securities rated as provided in paragraph
(ii) above;
82
(iii) such other securities (if any) as are approved as such in
writing by the Facility Agent (acting on the instructions of
the Majority Lenders); and
(iv) which, in each case, have no more than twelve (12) months to
final maturity.
"CONSOLIDATED EBITDA" means, in respect of any Relevant Period,
consolidated net pre-taxation profits of the Group for such
Relevant Period adjusted by:
(i) adding back Net Interest Costs;
(ii) adding back any amount attributable to the depreciation of
tangible assets or impairment of shareholdings;
(iii) adding back any amount attributable to the amortisation of
goodwill, intellectual property and other intangible assets;
(iv) adding back any amount attributable to net write-offs of
tangible fixed assets, including but not limited to
impairment tests or restructuring measures; and
(v) adding back any amount attributable to the provisions for
the Competition Law Liabilities and for any other future
competition law related fines.
"EXCESS CASH FLOW" means, in respect of any financial year of the
Group, consolidated cash flow from operating activities according
to IAS less:
(i) acquisitions and Capital Expenditure for that financial year;
(ii) the payment of any fines in relation to Competition Law
Liabilities and any other potential future competition law
related fines;
(iii) Total Debt Service for that financial year; and
(iv) the aggregate value of prepayments of Term Facility A Loans
made pursuant to Clause 9.8 (Voluntary Prepayment) during that
financial year.
"INTEREST COVER" means the ratio of Consolidated EBITDA to Net
Interest Expense.
"INTEREST PAYABLE" means, in respect of any Relevant Period, the
aggregate amount of interest (including the interest element of
leasing and hire purchase payments), expenses (cash or non-cash),
commission, fees, discounts and other finance charges of
whatsoever nature payable by any member of the Group (including
any commission, fees, discounts and other finance charges payable
by any member of the Group under any interest rate hedging
arrangement) but after deducting any commission, fees, discounts
and other finance charges receivable by any member of the Group
under any interest rate hedging arrangement.
"LEVERAGE RATIO" means the ratio of Total Net Debt to Consolidated
EBITDA.
"NET INTEREST COSTS" means Interest Payable, but after deducting
any non-cash interest, interest receivable or accrued by any
member of the Group on any cash deposit or bank account or on any
Cash Equivalents.
83
"NET INTEREST EXPENSE" means Net Interest Costs less imputed
interest on antitrust liabilities less interest on pension
provisions.
"NET WORTH" means the shareholders' equity, including capital
stock, additional paid-in capital, revenue reserves and minority
interest as reflected in the quarterly and annual consolidated
balance sheet of the Group.
"RELEVANT PERIOD" means each period of twelve (12) months ending
on the last day of each of the Company's financial years and/or
each period of twelve (12) months that corresponds with four
consecutive Financial Quarters ending on the Quarter Date on which
the relevant calculation falls to be made.
"TOTAL DEBT SERVICE" means, in respect of any Relevant Period, the
aggregate of:
(i) Net Interest Costs;
(ii) all scheduled repayments and mandatory prepayments paid or
falling due in respect of the Facilities but excluding any
amounts paid or falling due under the Revolving Credit
Facility and capable of being simultaneously re-drawn under
the terms of this Agreement); and
(iii) all repayments, prepayments and other payments of principal
paid or falling due in respect of any other Financial
Indebtedness of any member of the Group but excluding any
amounts paid or falling due under any overdraft or revolving
credit facility and capable of being simultaneously re-drawn
under the terms of the relevant facility).
"TOTAL NET DEBT" means, at any time (but so that no amount shall
be included or excluded more than once), the aggregate
indebtedness of the members of the Group constituting Financial
Indebtedness (but excluding indebtedness of any Group member to
another Group member) less Cash and Cash Equivalents plus:
(i) the amount of receivables sold or securitised; and
(ii) liabilities in relation to, and provisions for, the
Competition Law Liabilities as stated in the Company's
quarterly or annual balance sheet, any other competition law
related fines, related civil proceedings and costs related
to either of them, or, if greater, the amount of the Letter
of Credit.
(b) All accounting expressions which are not otherwise defined in this
Agreement shall be construed in accordance with IAS.
22.2 NET WORTH
Net Worth shall at all times throughout the term of the Facilities exceed
e 175,000,000.
22.3 INTEREST COVER
The Company must ensure that the ratio of Consolidated EBITDA to Net
Interest Expense for each Relevant Period ending on a Quarter Date
specified in Column A below shall equal or exceed the ratio set out
opposite such Quarter Date in Column B below:
85
COLUMN A COLUMN B
(QUARTER DATE) (RATIO)
--------------------------------------------------------
31 March 2003 3.00:1
--------------------------------------------------------
30 June 2003 3.00:1
--------------------------------------------------------
30 September 2003 3.00:1
--------------------------------------------------------
31 December 2003 3.00:1
--------------------------------------------------------
31 March 2004 3.25:1
--------------------------------------------------------
30 June 2004 3.50:1
--------------------------------------------------------
30 September 2004 3.75:1
--------------------------------------------------------
31 December 2004 4.25:1
--------------------------------------------------------
31 March 2005 4.50:1
--------------------------------------------------------
22.4 TOTAL NET DEBT TO CONSOLIDATED EBITDA
The Company must ensure that the ratio of Total Net Debt as at each
Quarter Date specified in Column A below to Consolidated EBITDA for the
Relevant Period ending on such Quarter Date shall not be greater than the
ratio set out opposite such Quarter Date in Column B below:
COLUMN A COLUMN B
(QUARTER DATE) (RATIO)
--------------------------------------------------------
31 March 2003 5.75:1
--------------------------------------------------------
30 June 2003 5.25:1
--------------------------------------------------------
30 September 2003 5.00:1
--------------------------------------------------------
31 December 2003 4.75:1
--------------------------------------------------------
31 March 2004 4.50:1
--------------------------------------------------------
30 June 2004 4.25:1
--------------------------------------------------------
30 September 2004 4.00:1
--------------------------------------------------------
31 December 2004 3.50:1
--------------------------------------------------------
31 March 2005 3.25:1
--------------------------------------------------------
85
22.5 MINIMUM GUARANTOR COVERAGE
The Company must ensure that by reference to the annual audited accounts
of the Group, the Consolidated EBITDA and/or turnover of the Guarantors,
in each case represents at least eighty-five (85) per cent. of the
Consolidated EBITDA and/or turnover of the Group at all times (the
"MINIMUM GUARANTOR COVERAGE").
22.6 CALCULATIONS
All calculations made for the purposes of the covenants set out in
Clause 22.3 (Interest Cover) to Clause 22.5 (Minimum Guarantor Coverage)
(inclusive) shall be made by reference to, where the Relevant Period to
which such covenant relates ends on, or the Quarter Date to which such
covenant relates falls on:
(a) any day other than the last day of any financial year of the
Company, the unaudited consolidated financial statements of the
Company for each of the four consecutive Financial Quarters within
that Relevant Period or, as the case may be, the unaudited
consolidated financial statements of the Company for the Financial
Quarter ending on that Quarter Date, in each case as delivered
pursuant to Clause 21 (Information Undertakings); and
(b) the last day of any financial year of the Company, as in paragraph
(a) above or, when so delivered, the audited consolidated
financial statements of the Company for that financial year.
22.7 FINANCIAL TESTING
(a) Thefinancial covenants set out in this Clause 22 shall be tested by
reference to each of the financial statements and each Compliance
Certificate delivered pursuant to Clause 21.1 (Financial Statements)
and Clause 21.2 (Compliance Certificate).
(b) All financial covenants set out in Clause 22.3 (Interest Cover) and
Clause 22.5 (Minimum Guarantor Coverage) shall be tested against the
Company's latest consolidated financial statements on a four
Financial Quarter rolling basis and adjusted pro forma for Permitted
Acquisitions and Permitted Disposals.
23. GENERAL UNDERTAKINGS
The undertakings in this Clause 23 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
23.1 AUTHORISATIONS
(a) Each Obligor shall (and the Company shall ensure that each other
member of the Group will) promptly:
(i) obtain, comply with and do all that is necessary to maintain
in full force and effect; and
(ii) supply certified copies to the Facility Agent of,
any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its obligations
under the Finance Documents and to ensure the legality,
86
validity, enforceability or admissibility in evidence in its jurisdiction
of incorporation of any Finance Document.
(b) Each Obligor shall (and the Company shall ensure that each other
member of the Group will):
(i) ensure that it has the right and is duly qualified to
conduct its business as it is conducted from time to time in
all applicable jurisdictions;
(ii) obtain, comply with and do all that is necessary to maintain
in full force and effect any Authorisation which is
necessary for the conduct of its business or the business of
the Group as a whole; and
(iii) upon the Facility Agent's written request supply the
Facility Agent with copies of any such Authorisations.
23.2 COMPLIANCE WITH LAWS
Each Obligor shall (and the Company shall ensure that each other member
of the Group will) 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 to which it is a
party.
23.3 NEGATIVE PLEDGE
(a) 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.
(b) No Obligor shall (and the Company shall ensure 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
any member of the Group;
(ii) sell, transfer or otherwise dispose of any of its
receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit
of a bank or other account may be applied, set-off or made
subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a
similar effect,
in circumstances where the arrangement or transaction is entered
into primarily as a method of raising Financial Indebtedness or of
financing the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to Permitted Security.
23.4 DISPOSALS
(a) Other than pursuant to the Management and Employee Benefit Plans,
the Hitco Options and the conversion rights under the convertible
bonds issued by the Company in September 2000, no Obligor shall (and
the Company shall ensure that no other member of the Group will)
enter into a single transaction or a series of
87
transactions (whether related or not) and whether voluntary or
involuntary to sell, lease, transfer or otherwise dispose of any
shares in any member of the Group.
(b) No Obligor shall (and the Company shall ensure that no other member
of the Group will) enter into a single transaction or a series of
transactions (whether related or not) and whether voluntary or
involuntary to sell, lease, transfer or otherwise dispose of all or
any part of its respective assets (other than shares referred to in
paragraph (a) above).
(c) Paragraph (b) above does not apply to any Permitted Disposal.
23.5 OPTIONS
Other than pursuant to the Management and Employee Benefit Plans, the
Hitco Options and the conversion rights under the convertible bonds
issued by the Company in September 2000, no Obligor shall (and the
Company shall ensure that no other member of the Group will) enter into
or permit to subsist any option or other arrangement whereby any person
has the right (whether or not exercisable only on a contingency) to
require any member of the Group to purchase or otherwise acquire or sell
or otherwise dispose of any material property or any interest in any
material property otherwise than where any such arrangement is permitted
by Clause 23.27 (Treasury Transactions).
23.6 CHANGE OF BUSINESS
No Obligor shall (and the Company shall ensure that no other member of
the Group will) make, or take any steps to make, any substantial change
to the general nature of its business from that carried on at the date of
this Agreement or carry on any other business which results in any
substantial change to the general nature of the business of the Group as
a whole from that carried on at the date of this Agreement.
23.7 YEAR END
Commencing 1 January 2003, each Obligor shall (and the Company shall
ensure that each other member of the Group will) ensure that each of its
financial years and each Financial Quarter in each of its financial years
shall end on a Quarter Date and the Company shall ensure that each
financial year, and each Financial Quarter of each financial year, of the
Group shall end on a Quarter Date.
23.8 RECORD KEEPING
Upon reasonable notice being given by the Facility Agent to the relevant
Obligor, that Obligor shall (and the Company shall ensure that each other
member of the Group will) permit the Facility Agent and/or any
professional advisers appointed by the Facility Agent to examine during
normal business hours the records and books of account of such Obligor or
other member of the Group for the purpose of ascertaining compliance with
the Finance Documents.
23.9 CONSTITUTIONAL DOCUMENTS
No Obligor shall (and the Company shall ensure that no other member of
the Group will) request, permit or make any change to its constitutional
documents without prior written notification to the Facility Agent where
such change relates to the shareholders, the share capital, the
management, the registered office or the legal form of such Obligor.
88
23.10 PRESERVATION OF ASSETS
Each Obligor shall (and the Company shall ensure that each other member
of the Group will) maintain and preserve all of its assets that are
necessary in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
23.11 INSURANCE
(a) Each Obligor shall (and the Company shall ensure that each other
member of the Group will) maintain insurance on and in relation to
its business and assets with reputable underwriters or insurance
companies against such risks and to such extent as is usual for
prudent companies carrying on a business such as that carried on by
such Obligor or Group member in the country or countries in which
such Obligor or Group member owns or leases property or otherwise
conducts its business.
(b) Without limiting paragraph (a) above, each Obligor shall (and the
Company shall ensure that each other member of the Group will)
maintain insurance against business interruption, professional
indemnity (i.e. directors' and officers' liability insurance),
pollution and public liability in each case at levels no lower than
those in place prior to Closing.
(c) Each Obligor shall (and the Company shall ensure that each other
member of the Group will) pay all premiums and do all other things
necessary to keep on foot the insurances required to be effected and
maintained by it pursuant to paragraphs (a) and (b) above and will
procure that all insurance policies or certificates of insurance
evidencing compliance with paragraphs (a) and (b) above or (in the
absence of the same) such other evidence of the existence of any
insurance referred to in paragraph (a) and (b) above as may be
reasonably acceptable to the Facility Agent shall contain loss payee
provisions acceptable to the Facility Agent and the Security Agent
noting the Security Agent's interest thereon and naming the Security
Agent as loss payee.
(d) The Company shall supply the Facility Agent on reasonable request
with copies of each receipt for all premiums and other amounts
payable by any Obligor or other member of the Group under the
insurances effected and maintained by any of them pursuant to
paragraphs (a) and (b) above and shall, in any event, use all
reasonable endeavours to procure that the insurer in respect of such
insurances undertakes to the Facility Agent to notify it should any
renewal fee or other sum payable by any Obligor or other Group
member not be paid when due.
(e) Upon reasonable request, the Company shall supply the Facility Agent
with a copy of all insurance policies or certificates of insurance
evidencing compliance with paragraphs (a) and (b) above or (in the
absence of the same) such other evidence of the existence of any
insurance referred to in paragraphs (a) and (b) above as may be
reasonably acceptable to the Facility Agent and shall, in any event,
notify the Facility Agent of any material changes to any such
insurance made from time to time.
23.12 INTELLECTUAL PROPERTY
Each Obligor shall (and the Company shall ensure that each other member
of the Group will):
(a) make such registrations and pay such fees and other amounts as are
necessary to keep those registered Intellectual Property Rights
which are necessary for the
89
carrying out of the business of the Group as a whole in force and
to record its interest in those Intellectual Property Rights;
(b) observe and comply with all material obligations and laws to which
it in its capacity as registered proprietor, beneficial owner,
user, licensor or licensee of the Intellectual Property Rights (or
any part thereof) is subject where failure to do so might
reasonably be expected to have a Material Adverse Effect;
(c) do all acts as are reasonably practicable (including, without
limitation, the institution of legal proceedings) to maintain,
protect and safeguard the Intellectual Property necessary for
carrying out of the business of the Group as a whole; and
(d) not terminate or discontinue the use of any Intellectual Property
necessary for carrying out of the business of the Group, save that
licensing arrangements in relation to such Intellectual Property
may be entered into between members of the Group PROVIDED THAT
such licensing arrangements:
(i) do not allow any further sub-licensing by the licensee; and
(ii) do not have a material adverse effect on the value of any of
the Intellectual Property licensed under such.
23.13 ENVIRONMENTAL COMPLIANCE
Each Obligor shall (and the Company shall ensure that each other member
of the Group will) obtain and maintain all requisite Environmental
Licences and comply with:
(a) all applicable Environmental Laws; and
(b) the terms and conditions of all Environmental Licences applicable
to it,
and take all reasonable steps in anticipation of known or expected future
changes to or obligations under the same, in each case where failure to
do so would or might reasonably be expected to have a Material Adverse
Effect.
23.14 ENVIRONMENTAL CLAIMS
The Company shall inform the Facility Agent in writing as soon as
reasonably practicable upon its becoming aware of:
(a) any Environmental Claim which has been commenced or threatened
against any member of the Group, or
(b) 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 might, if determined against that member of the Group,
reasonably be expected to have a Material Adverse Effect.
23.15 PENSION SCHEMES
(a) The Company will, if reasonably requested by the Facility Agent,
deliver to the Facility Agent:
90
(i) at such time as those reports are prepared in order to
comply with then current statutory or auditing requirements
(if any); and
(ii) if the Facility Agent reasonably believes that any relevant
statutory or auditing requirements are not being complied
with,
actuarial reports in relation to the pension schemes for the time
being operated by members of the Group.
(b) Each Obligor shall (and the Company shall procure that each other
member of the Group will) ensure that all pension schemes
applicable to it are fully provided for (either by way of being
funded or by way of provision in its balance sheet) based on
reasonable actuarial assumptions to the extent required by
applicable law and are administered and funded in accordance with
applicable law.
23.16 TAXATION
(a) Each Obligor shall (and the Company shall ensure that each other
member of the Group will) pay and discharge all Taxes imposed upon
it or its assets within the time period allowed without incurring
penalties, save to the extent that:
(i) payment is being contested in good faith;
(ii) adequate reserves are being maintained for those Taxes; and
(iii) payment can be lawfully withheld.
(b) No Obligor shall (and the Company shall ensure that no other member
of the Group will) be materially overdue in the filing of any Tax
returns.
(c) Each Obligor shall (and the Company shall ensure that each other
member of the Group will) do all such things as are necessary to
ensure that no claims are or are reasonably likely to be asserted
against any member of the Group with respect to Taxes which might
reasonably be expected to have a Material Adverse Effect.
23.17 SECURITY
(a) Each Obligor shall ensure that any Security expressed to be created
by it by or pursuant to, or, as the case may be, expressed to have
been created by it and to be evidenced in, any Security Document
remains in full force and effect with the ranking and priority it
is expressed to have.
(b) No Obligor shall (and the Company shall ensure that no other member
of the Group will) do or omit to do anything or knowingly permit or
cause anything to be done or omitted to be done which would or
could adversely affect any Security expressed to be created by any
Obligor by or pursuant to, or any Security expressed to have been
created by any Obligor and to be evidenced in, any Security
Document.
(c) Each Obligor shall take all such action as the Facility Agent or
the Security Agent may reasonably request for the purpose of
perfecting any Security granted or to be granted pursuant to the
Finance Documents.
91
(d) Each Obligor shall, if the Security Agent lawfully exercises any
power (whether of sale or other disposal or otherwise) or right
with respect to the Charged Assets, do all reasonable acts to
permit the exercise of such power or right.
(e) Each Obligor shall satisfy the conditions subsequent set out in
Part II of Schedule 2 (Conditions Precedent andConditions
Subsequent) as soon as possible after the Closing Date.
23.18 PARI PASSU RANKING
Without limiting Clause 23.17(a), each Obligor shall (and shall cause
each other member of the Group to) ensure that its payment obligations
under the Finance Documents will rank at least pari passu with the claims
of all its unsecured and unsubordinated creditors except for obligations
mandatorily preferred by law applying to companies generally.
23.19 SHARE CAPITAL
No Obligor shall (and the Company shall ensure that no other member of
the Group will):
(a) redeem, purchase, return or make any repayment in respect of any
of its share capital or make any capital distribution or enter
into any agreement to do so; or.
(b) allot or issue any shares or grant to any person the right
(whether conditional or otherwise) to call for the issue or
allotment of any share, partnership interest, loan note or loan
capital of such Obligor or other member (including an option or a
right of pre-emption or conversion) or enter into any agreement or
pass any corporate resolution to do any of the foregoing other
than:
(i) for the purposes of an issue of shares by one wholly-owned
Subsidiary of the Company to another wholly-owned Subsidiary
of the Company; or
(ii) for the purposes of an issue of shares by any member of the
Group to a person who acts or is to act as the trustee of
any Group pension scheme or employee or management incentive
scheme PROVIDED THAT such scheme has been approved in
writing by the Facility Agent such approval not to be
unreasonably withheld.
23.20 DIVIDENDS AND OTHER DISTRIBUTIONS
As long as the Leverage Ratio is greater than 2.0:1:
(a) the Company shall use its reasonable endeavours to ensure that the
members of its boards will not propose to make any dividend,
return on capital, repayment of capital contributions or other
distribution (whether in cash or kind) or make any distribution of
assets or other payment whatsoever in respect of share capital
whether directly or indirectly; and
(b) the Company will refrain from making any share buy-backs other
than as provided for in the Management and Employee Benefit Plans.
23.21 SUBORDINATED DEBT
No Obligor shall (and the Company shall ensure that no other member of
the Group will):
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(i) pay, repay, prepay, redeem, purchase, return or otherwise retire
the principal amount of any indebtedness; or
(ii) pay any interest or return on principal or repayment of principal
or other distribution (whether in cash or kind) or make any
distribution of assets or other payments whatsoever in respect of
any indebtedness,
in each case under any Intra Group Loan Document with a member of the
Group which is not an Obligor.
23.22 CASH FLOW RESTRICTIONS
The Company shall ensure that, save for the Finance Documents, no member
of the Group will be a party to any contractual or similar arrangement
pursuant to which any member of the Group is prohibited from making any
payments of dividends or other distributions, or from lending monies, to
another member of the Group.
23.23 MERGER
With the exception of the proposed merger of SGL CARBON S.A., Nowy Sacz,
Poland and ZEW S.A., Raciborz, Poland (PROVIDED THAT the shares in the
merged entity are pledged, charged or assigned in favour of the Security
Agent and/or the Secured Parties), 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 which results
in assets being transferred from it to an entity that is not an Obligor
unless the Facility Agent (acting on the instructions of the Majority
Lenders) shall have given its prior written consent thereto, such consent
not to be unreasonably withheld.
23.24 INDEBTEDNESS
No Obligor shall (and the Company shall ensure that no other member of
the Group will) incur, create or permit to subsist or have outstanding:
(a) 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, in either case,
Permitted Indebtedness; or
(b) any other indebtedness or enter into any agreement or arrangement
whereby it is entitled to incur, create or permit to subsist any
other indebtedness, except, in either case, in the ordinary course
of its business.
23.25 LOANS OUT
(a) No Obligor shall (and the Company shall ensure that no other member
of the Group will) make any loans, grant any credit or provide any
other financial accommodation to or for the benefit of any person,
including any of its shareholders.
(b) Paragraph (a) shall not apply to Permitted Loans.
23.26 GUARANTEES OR CONTINGENT LIABILITIES
(a) No Obligor shall (and the Company shall ensure that no other member
of the Group will):
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(i) give any guarantee or indemnity to or for the benefit of any
person or otherwise voluntarily assume any liability,
whether actual or contingent, in respect of any obligation
of any person; or
(ii) be or become directly or indirectly or actually or
contingently liable for any loss, damage or expense
resulting from the non-payment or breach of any obligation
of any other person.
(b) Paragraph (a) shall not apply to any Permitted Guarantees or
Contingent Liabilities.
23.27 TREASURY TRANSACTIONS
No Obligor shall (and the Company shall ensure that no other member of
the Group will) enter into any Treasury Transaction except for:
(a) Treasury Transactions entered into in accordance with Clause 23.28
(Hedging); and
(b) any other foreign exchange transactions for spot or forward
delivery entered into in the ordinary course of business (and not
for investment or speculative purposes) to hedge actual or
projected exposures (including, without limitation, currency
exposure relating to Loans made in Dollars) incurred by any member
of the Group.
23.28 HEDGING
Each Borrower shall (and the Company shall ensure that each other member
of the Group will) enter into and/or maintain Hedging Agreements:
(a) so as to ensure that for a period of thirty (30) Months commencing
on the date of this Agreement the Group has hedging of interest
rate exposure in respect of not less than fifty (50) per cent. of
the aggregate Commitments in respect of the Outstandings relating
to the Term Facilities from time to time; and
(b) which rank pari passu with the claims of the Finance Parties under
the Finance Documents.
23.29 ACQUISITIONS
No Obligor shall (and the Company shall ensure that no other member of
the Group will) engage in any Acquisitions other than Permitted
Acquisitions or as otherwise permitted by Clause 23.30 (Joint Ventures).
23.30 JOINT VENTURES
(a) No Obligor shall (and the Company shall ensure that no other
member of the Group will):
(i) form, or enter into, or permit to subsist;
(ii) purchase, subscribe for or otherwise acquire any shares (or
other securities or any interest therein) in; or
(iii) transfer any assets to, or lend to, or guarantee or give
security for the obligations of,
94
any partnership, consortium, Joint Venture or other like
arrangement or agree to do any of the foregoing.
(b) Paragraph (a) shall not apply to:
(i) any partnership, consortium, Joint Venture or other like
arrangement existing at the date of this Agreement;
(ii) any Permitted Loans; and
(iii) any Permitted Guarantees and Contingent Liabilities.
23.31 MANDATORY CASH COLLATERAL
Until the Expiry Date, the Company shall provide Mandatory Cash
Collateral on each anniversary of 24 October 2002.
23.32 AMENDMENTS TO FINANCE AND OTHER DOCUMENTS
Neither the Company nor any Obligor shall amend, vary, novate, supplement
or terminate any document delivered to the Facility Agent pursuant to
Clause 4 (Conditions of Utilisation) or Clause 26 (Changes to the
Obligors), or waive any right thereunder, except for:
(a) any of the foregoing which is expressly consented to in writing by
the Facility Agent (acting on the instructions of the Majority
Lenders); or
(b) any amendment, variation or waiver which is of a minor or technical
nature.
23.33 COMPLIANCE WITH ERISA
The Company shall procure that each US Group Member and each ERISA
Affiliate shall not cause or permit to occur either an event which would
result in the imposition of Security under section 412 of the Code or
section 302 or section 4068 of ERISA or an ERISA Event that might
reasonably be expected to have a Material Adverse Effect.
23.34 FEDERAL RESERVE REGULATIONS
The Company shall procure that each US Group Member and each ERISA
Affiliate will use the Facilities without violating Regulations T, U and
X.
23.35 MATERIAL ADVERSE EFFECT
No Obligor shall (and the Company shall ensure that no other member of
the Group will) enter into any agreement or obligation:
(i) which is reasonably likely to have a Material Adverse Effect; or
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(ii) the performance of which would result in a breach of any provision
of any Finance Document by any Obligor.
23.36 ADDITIONAL GUARANTOR
The Company shall procure that any Subsidiary which qualifies as a
Material Subsidiary becomes an Additional Guarantor no later than 90 days
after the date of this Agreement or, if such Subsidiary only qualifies as
a Material Subsidiary after such date, after the relevant audited
financial statements are to be delivered in accordance with Clause 21.1
(Financial Statements) para. (a) (i), that the shares in such Material
Subsidiary are pledged or assigned and that the assets of such Material
Subsidiary are pledged or assigned in favour of the Finance Parties in
accordance with the applicable laws. However, should any Obligor acquire
shares in a target company which will qualify as a Material Company, the
above applies mutatis mutandis within 90 days of the date of such
acquisition.
23.37 MANDATORILY DISCHARGED INDEBTEDNESS AND PERMITTED INDEBTEDNESS
(a) The Borrowers undertake to make a Utilisation of Term Facility A for the
purposes of discharging the Mandatorily Discharged Indebtedness not later
than 30 Business Days after the date of this Agreement. However, all
Mandatorily Discharged Indebtedness shall be discharged by Utilisations
of Term Facility A which are made on the same date.
(b) The Company procures that the contractual arrangements pertaining to the
Permitted Indebtedness identified in the definition of Permitted
Indebtedness para. (r) will be entered into within 90 days after the date
of this Agreement and such Permitted Indebtedness will remain in place
and such commitments will be available or the respective amounts will
remain drawn, as the case may be, until Termination Date.
23.38 GERMAN OBLIGORS
The provisions of Clause 23.4 (Disposals) to Clause 23.7 (Year End),
Clause 23.9 (Constitutional Documents), Clause 23.12 (Intellectual
Property), Clause 23.22 (Cash Flow Restrictions) to Clause 23.27
(Treasury Transactions), Clause 23.29 (Acquisitions and Investments) and
Clause 23.30 (Joint Ventures) (the "RELEVANT RESTRICTIVE COVENANTS")
shall not apply to any Obligor whose Relevant Jurisdiction is Germany
(each a "GERMAN OBLIGOR") or any of its Subsidiaries from time to time
whose Relevant Jurisdiction is Germany (together with such German
Obligor, a "GERMAN GROUP").
23.39 NOTIFICATION BY A GERMAN OBLIGOR
Each German Obligor undertakes to inform the Facility Agent in writing
and in good time of the intention of it or of any member of its German
Group to carry out any of the acts or take any of the steps referred to
in the Relevant Restrictive Covenant explaining if and how such steps
might affect the financial situation of the Company or the Group, or the
Finance Parties' risk and security position. Any such notification shall
not be made later than forty-five (45) days before such measure shall be
implemented, or in case of urgent matters requiring an implementation on
shorter notice immediately after the need for the relevant measure arises
PROVIDED THAT the reasons for such urgent implementation are described in
the notification. The Facility Agent shall be entitled within ten (10)
Business Days of receipt of the relevant German Obligor's notice to
request the relevant German Obligor and the Company to supply to the
Facility Agent in sufficient copies for the Finance Parties further
relevant information in connection with the proposed action or steps
referred to in such notice. If any notification pursuant to this
Clause 23.39 is received by the Facility
96
Agent, the Lenders will determine within twenty (20) Business Days after
receipt of the relevant notification, on a case by case basis, whether
the proposed measure would constitute an Event of Default if implemented.
24. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 24 is an Event
of Default.
24.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable, including payment of Mandatory Cash Collateral
by the Company, unless:
(a) its failure to pay is caused by administrative or technical error;
and
(b) payment is made within two (2) Business Days of its due date.
24.2 FINANCIAL COVENANTS
Any requirement of Clause 22 (Financial Covenants) is not satisfied.
24.3 OTHER OBLIGATIONS
(a) An Obligor does not comply with a material provision of the Finance
Documents (other than those referred to in Clause 24.1 (Non-Payment) and
Clause 24.2 (Financial Covenants)) or does not comply with any provision
of the Finance Documents which is capable of remedy and fails to remedy
such breach within a grace period specified by the Facility Agent of not
more than ten (10) Business Days or, in case of a failure by an Obligor to
comply with a notification requirement pursuant to Clause 23.39
(Notification by a German Obligor), does not promptly upon the Facility
Agent's request comply with its obligations thereunder.
(b) An Obligor implements a measure requiring prior notification of the
Facility Agent pursuant to Clause 23.39 (Notification by a German Obligor)
after having been informed by the Facility Agent that the Lenders consider
implementation of the relevant measure as having material adverse
consequences for their risk or security position, or implements such
measure prior to the earlier to occur of (i) approval by the Lenders of
such measure and (ii) twenty (20) Business Days after having notified the
Facility Agent in accordance with Clause 23.39 (Notification by a German
Obligor).
24.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any other document delivered by or on behalf
of any Obligor under or in connection with any Finance Document is or
proves to have been incorrect or misleading in any material respect when
made or deemed to be made and which has or is reasonably likely to have a
Material Adverse Effect.
24.5 CROSS DEFAULT
(a) Any Financial Indebtedness of any member of the Group is not paid
when due and payable nor within any originally applicable grace
period.
97
(b) Any Financial Indebtedness of any member of the Group is declared
to be or otherwise becomes due and payable prior to its specified
maturity as a result of an event of default (however described).
(c) Any commitment for any Financial Indebtedness of any member of the
Group is cancelled or suspended by a creditor of any member of the
Group as a result of an event of default (however described).
(d) Any creditor of any member of the Group becomes entitled to declare
any Financial Indebtedness of any member of the Group due and
payable prior to its specified maturity as a result of an event of
default (however described).
(e) No Event of Default will occur under this Clause 24.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above
is less than e 2,500,000 (or its equivalent in any other currency
or currencies).
24.6 INSOLVENCY
(a) A member of the Group located in an OECD country or a Material
Subsidiary (each a "RELEVANT COMPANY") is unable or admits
inability to pay its debts as they fall due, suspends making
payments on any of its debts or, by reason of actual or anticipated
financial difficulties, commences negotiations with one or more of
its creditors with a view to rescheduling any of its indebtedness.
In particular, any Relevant Company incorporated under the laws of
Germany (a "GERMAN RELEVANT COMPANY") is unable to pay its debts as
they fall due (Zahlungsunfahigkeit), commences negotiations with
any one or more of its creditors with a view to the general
readjustment or rescheduling of its indebtedness or makes a general
assignment for the benefit of or a composition with its creditors
or, for any of the reasons set out in Sections 17-19 of the German
Insolvenzordnung, any German Relevant Company files for insolvency
(Antrag auf Eroffnung eines Insolvenzverfahrens) or the board of
directors (Geschaftsfuhrung) of any German Relevant Company
is required by law to file for insolvency or the competent court
takes any of the actions set out in Section 21 of the German
Insolvenzordnung or institutes insolvency proceedings against any
German Relevant Company (Eroffnung des Insolvenzverfahrens) or
any event occurs with respect to any other Relevant Company which,
under the laws of any jurisdiction to which it is subject or in
which it has assets, has a similar or analogous effect.
(b) Any event or proceedings are taken with respect to any Relevant
Company that has a similar effect to any of the provisions set out
in paragraph (a) above.
(c) A moratorium is declared in respect of any indebtedness of any
Relevant Company.
24.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way
of voluntary arrangement, scheme of arrangement or otherwise) of
any Relevant Company other than a solvent liquidation or
reorganisation of any Relevant Company which is not an Obligor;
98
(b) a composition, assignment or arrangement with any creditor of any
Relevant Company;
(c) the appointment of a liquidator (other than in respect of a solvent
liquidation of a Relevant Company which is not an Obligor),
receiver, administrator, provisional administrator, administrative
receiver, compulsory manager or other similar officer in respect of
any Relevant Company or any of its assets; or
(d) enforcement of any Security over any material assets of any
Relevant Company,
or any analogous procedure or step is taken in any jurisdiction, unless
such corporate action, legal proceedings or analogous procedure or step
is fully discontinued within fourteen (14) days of its commencement.
24.8 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any asset or
assets of a Relevant Company having an aggregate value of e 1,500,000 and
is not discharged within fourteen (14) days.
24.9 OWNERSHIP OF THE OBLIGORS
Except in relation to a sale of shares in HITCO CARBON COMPOSITES, Inc.
under an existing call option with its chief executive officer, an
Obligor (other than the Company) is not or ceases to be a wholly-owned
Subsidiary of the Company on or after the Closing Date.
24.10 FINANCE DOCUMENTS
If:
(a) it is or becomes unlawful for an Obligor to perform any of its
obligations under the Finance Documents;
(b) an Obligor repudiates a Finance Document or evidences an intention
to repudiate a Finance Document; or
(c) any Finance Document is not or ceases to be binding on or
enforceable against an Obligor,
and the risk or security position of the Lenders is materially adversely
affected thereby.
24.11 TRANSACTION SECURITY
If:
(a) any Transaction Security is not in full force and effect with the
ranking and priority it is expressed to have;
(b) an Obligor repudiates any of the Transaction Security or evidences
an intention to repudiate any of the Transaction Security; or
(c) a notification is made to the Facility Agent pursuant to Clause
19.9 (b),
99
and the security or risk position of the Lender is materially adversely
affected thereby.
24.12 CESSATION OF BUSINESS
Any Obligor ceases to carry on all or any substantial part of its
business or proposes to do so.
24.13 AUDITORS' QUALIFICATION
The Company's auditors qualify their report on the audited consolidated
financial statements of the Group in any manner that is, in the opinion
of the Majority Lenders (acting reasonably), materially adverse in the
context of the Finance Documents and the transactions contemplated by the
Finance Documents.
24.14 MATERIAL ADVERSE CHANGE OR EFFECT
Any event or circumstance occurs which the Majority Lenders reasonably
believe has had or could have a Material Adverse Effect or, following a
notification pursuant to Clause 23.39 (Notification by a German Obligor),
the Majority Lenders reasonably believe has or could have material
adverse consequences for the Lenders' risk and security position.
24.15 GUARANTOR ACCESSION
Any of the Material Subsidiaries has not become an Additional Guarantor
on or before the date falling ninety (90) days after the Closing Date or
a request of the Facility Agent in accordance with Clause 26.3
(Additional Guarantors), respectively.
24.16 COMPULSORY ACQUISITION
All or any part of the assets of any member of the Group are seized,
nationalised, expropriated or compulsorily acquired by, or by the order
of, any agency of any state having a value in excess of e 5,000,000.
24.17 CHANGE OF CONTROL
There is a Change of Control.
24.18 PROCEEDINGS
(a) Any litigation, arbitration, labour dispute or administrative proceedings
of or before any court, arbitral body or agency (other than the
proceedings referred to in paragraph (b) below) which, if adversely
determined, could, in the reasonable opinion of the Majority Lenders, be
expected to have a Material Adverse Effect is or are started in
accordance with the applicable procedural rules in the relevant
jurisdiction or threatened against any member of the Group.
(b) Other than the Existing Competition Law Proceedings as set out in
Schedule 15 (Existing Competition Law Proceedings and Anti-Trust
Lawsuits), any competition law related (i) civil litigation, civil
lawsuits or other civil proceedings of or before any court are started in
accordance with the applicable procedural rules in any relevant
jurisdiction against any member of the Group which, if adversely
determined, could, in the reasonable opinion of the Majority Lenders, be
expected to have a Material Adverse Effect or (ii) any fines in the
aggregate amount exceeding e 2,500,000 are assessed by way of any
administrative proceedings by the relevant authorities or (iii) any
fines in the aggregate amount exceeding
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the existing fines of e 80,200,000 and additional e 27,750,000 by at least
e 2,500,000 in relation to the Existing Competition Law Proceedings
identified in Schedule 15 No. I are assessed by way of any administrative
proceedings by the relevant authorities.
However, before accelerating the Facilities pursuant to Clause 24.19
(Acceleration), the parties will enter into negotiations in good faith
for a period not exceeding 30 days after the occurrence of any of the
events set out in No. (i), (ii) and/or (iii) with a view to continue the
Facilities.
24.19 ACCELERATION
On and at any time after the occurrence of an Event of Default, which is
continuing and in case of an Event of Default pursuant to Clause 24.4
(Misrepresentation), Clause 24.9 (Ownership of the Obligors),
Clauses 24.11 (Transaction Security), Clause 24.12 (Cessation of
Business) and Clause 24.16 (Compulsory Acquisition), if the Majority
Lenders consider that such Event of Default has material adverse
consequences for the Lenders' risk and security position, the Facility
Agent may, and shall if so directed by the Majority Lenders, by notice to
the Company:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable;
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Facility Agent on the instructions of the Majority Lenders;
(d) require the Borrowers to procure that the liabilities of each of
the Lenders are promptly reduced to zero, whereupon the Borrowers
will do so;
(e) more specifically, require the Company to:
(i) procure that the liabilities of each of the Issuing Banks
and Fronting Banks under or in connection with the Letter of
Credit are promptly reduced to zero; or
(ii) provide Cash Collateral for the Letter of Credit in Euros
and in an amount specified by the Facility Agent,
whereupon the Company will do so;
(f) require the Borrowers to repay or pay all outstandings under the
Subfacilities, whereupon the Borrowers will do so; and/or
(g) exercise, or direct the Security Agent to exercise, all or any of
its or, as the case may be, the Security Agent's rights, remedies,
powers or discretions under any of the Finance Documents.
24.20 US OBLIGORS
Notwithstanding Clause 24.20 (Acceleration), upon the actual or deemed
entry of an order for relief under the US Bankruptcy Code with respect to
any US Obligor, the Facilities shall
101
cease to be available to such US Obligor, all Loans outstanding to such
US Obligor shall become immediately due and payable and such US Obligor
shall be required to provide cash cover in respect of the Letters of
Credit issued for its account in each case automatically and without any
further action by any party to this Agreement.
SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS
25.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
(a) Subject to this Clause 25, a Lender (the "EXISTING LENDER") may assign and
transfer or pledge, as the case may be, any of its rights and obligations
under this Agreement to another bank, financial institution, trust, fund,
special purpose vehicle or other entity (the "NEW LENDER") PROVIDED THAT
in respect of the Revolving Credit Facility, such Existing Lender may not
assign and transfer to a New Lender its rights and obligations in relation
thereto without the prior consent of the Facility Agent, such consent not
to be unreasonably withheld or delayed.
(b) Notwithstading the subsequent provisions of this Clause, an Existing
Lender may assign or pledge, as the case may be, any claims under this
Agreement to any third party for refinancing purposes. The Existing Lender
shall in case of any such assignments remain responsible in all respects
for the administration of the claims so assigned, and shall ensure that
all information relating to the Obligors and the Finance Documents made
available to any such assignee is subject at all times to a strict
confidentiality obligation, and that the Obligors will following such
assignment be in no less advantageous a position, in terms of cost and
other potentially detrimental effects, than before such assignment.
25.2 CONDITIONS OF ASSIGNMENT AND TRANSFER
(a) Theconsent of neither the Company nor any other Obligor is required for an
assignment and transfer by a Lender, but such Lender shall consult with
the Company prior to any assignment.
(b) An assignment and transfer of a Lender's Commitment and participation in
outstanding Loans must be in a minimum amount of e 3,000,000 or any higher
amount which is an integral multiple of e 500,000 unless all of such
Lender's Commitment and participation in outstanding Loans are assigned or
transferred.
(c) If a Lender wishes to enter into an assignment and transfer of its Term
Facility B Commitment and Term Facility B Outstandings, the consent of the
beneficiary under the Letter of Credit will be required. Furthermore, if
the Majority Lenders decide that the Letter of Credit is to be issued
through one or more Fronting Banks, the consent of all Fronting Banks will
be required, such consent not to be unreasonably withheld or delayed.
(d) An assignment and transfer will only be effective on receipt by the
Facility Agent of written confirmation from the New Lender (in form and
substance satisfactory to the Facility
102
Agent) that the New Lender will assume the same obligations to the other
Finance Parties as it would have been under if it was an Original Lender.
(e) A transfer will only be effective if the procedure set out in Clause 25.5
(Procedure for Transfer) is complied with.
(f) If:
(i) a Lender assigns and transfers any of its rights, obligations or
claims under the Finance Documents or changes its Facility Office;
and
(ii) as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged to make a
payment to the New Lender or Lender acting through its new
Facility Office under Clause 14 (Tax Gross-up and Indemnities) or
Clause 15 (Increased Costs),
then the New Lender or Lender acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same extent
as the Existing Lender or Lender acting through its previous Facility
Office would have been if the assignment, transfer or change had not
occurred.
25.3 ASSIGNMENT AND TRANSFER FEE
Other than in relation to an assignment and transfer under Clause
25.1(b), the New Lender shall, on the date upon which an assignment and
transfer takes effect, pay to the Facility Agent (for its own account) a
fee of e 1,500.
25.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
(i) the legality, validity, effectiveness, adequacy or enforceability
of the Finance Documents or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its obligations
under the Finance Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and affairs
of each Obligor and its related entities in connection with its
participation in this Agreement and has not relied exclusively on
any information provided to it by the Existing Lender in connection
with any Finance Document; and
103
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities whilst
any amount is or may be outstanding under the Finance Documents or
any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights,
obligations and claims assigned or transferred under this
Clause 25; or
(ii) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.
25.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 25.2 (Conditions of Assignment
and Transfer) an assignment and transfer is effected in accordance with
paragraph (b) below when the Facility Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Lender and
the New Lender. The Facility Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed Transfer Certificate
appearing on its face to comply with the terms of this Agreement and
delivered in accordance with the terms of this Agreement, execute that
Transfer Certificate.
(b) On the Transfer Date:
(i) each of the Obligors and the New Lender shall assume obligations
towards one another and/or acquire rights or claims against one
another which differ from the rights, obligations and claims among
the Obligors and the Existing Lender only insofar as that Obligor
and the New Lender have assumed and/or acquired the same in place
of that Obligor and the Existing Lender;
(ii) the Facility Agent, the Security Agent, the Mandated Lead
Arrangers, the New Lender, the other Lenders and any relevant
Fronting Banks shall acquire the same rights and claims and assume
the same obligations between themselves as they would have acquired
and assumed had the New Lender been an Original Lender with the
rights, claims and/or obligations acquired or assumed by it as a
result of the transfer and to that extent the Facility Agent, the
Security Agent, the Mandated Lead Arrangers, any relevant Fronting
Banks and the Existing Lender shall each be released from further
obligations to each other under this Agreement; and
(iii) the New Lender shall become a Party as a "LENDER".
25.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to:
(a) any of its Affiliates and any of its or their respective officers,
employees, Agents, professional advisers or auditors; and
(b) any other person:
(i) to (or through) whom that Lender assigns and transfers (or
may potentially assign and transfer) all or any of its
rights, obligations and/or claims under this Agreement;
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(ii) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation
to, or any other transaction under which payments are to be
made by reference to, this Agreement or any Obligor; or
(iii) to whom, and to the extent that, information is required to
be disclosed by any applicable law or regulation,
(iv) any information about any Obligor, the Group and the Finance
Documents as that Lender shall consider appropriate if, in
relation to paragraphs (i) and (ii) above, the person to
whom the information is to be given has entered into a
Confidentiality Undertaking.
25.7 ANCILLARY PROVISIONS
Each Obligor shall execute and do all such transfers, assignments,
assurances, acts and things as the Facility Agent may reasonably request
for perfecting and completing any assignment and transfer by a Lender.
26. CHANGES TO THE OBLIGORS
26.1 ASSIGNMENTS AND TRANSFER BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
26.2 ADDITIONAL BORROWERS
(a) The Company may request that any of its Material Subsidiaries becomes an
Additional Borrower (and thereby an Additional Guarantor). That Material
Subsidiary shall become an Additional Borrower (and thereby an Additional
Guarantor) if:
(i) other than in relation to an Approved Additional Borrower, the
Facility Agent approves the addition of that Material Subsidiary;
(ii) the Company delivers to the Facility Agent a duly completed and
executed Borrower Accession Letter;
(iii) the Company confirms that no Default is continuing or would occur
as a result of that Material Subsidiary becoming an Additional
Borrower (and thereby an Additional Guarantor);
(iv) such Additional Borrower provides and, to the extent permitted by
law, causes any Subsidiary to provide, such Security for all or any
part of its obligations under the Finance Documents as the Facility
Agent shall reasonably require; and
(v) the Facility Agent has received all of the documents and other
evidence listed in Part III of Schedule 2 (Conditions Precedent and
Conditions Subsequent) in relation to that Additional Borrower,
each in form and substance satisfactory to the Facility Agent.
(b) The Facility Agent shall notify the Company and the Lenders promptly upon
being satisfied that it has received (in form and substance satisfactory
to it) all the documents and other evidence listed in Part III of Schedule
2 (Conditions Precedent and Conditions Subsequent).
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26.3 ADDITIONAL GUARANTORS
(a) The Company may, and shall at the request of the Facility Agent, request
that any of its Material Subsidiaries become an Additional Guarantor. The
Company may also request that any other of its Subsidiaries become an
Additional Guarantor. That Subsidiary (be it a Material Subsidiary or not)
shall become an Additional Guarantor if:
(i) the Company delivers to the Facility Agent a duly completed and
executed Guarantor Accession Letter;
(ii) such Additional Guarantor provides and, to the extent permitted by
law, causes any of its Subsidiaries to provide, such Security for
all or any part of its obligations under the Finance Documents as
the Facility Agent shall require; and
(iii) the Facility Agent has received all of the documents and other
evidence listed in Part III of Schedule 2 (Conditions Precedent and
Conditions Subsequent) in relation to that Additional Guarantor,
each in form and substance satisfactory to the Facility Agent.
(b) The Facility Agent shall notify the Company and the Lenders promptly upon
being satisfied that it has received (in form and substance satisfactory
to it) all the documents and other evidence listed in Part III of Schedule
2 (Conditions Precedent and Conditions Subsequent).
26.4 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating Representations are true and correct in
relation to it as at the date of delivery as if made by reference to the
facts and circumstances then existing.
SECTION 10
THE FINANCE PARTIES
27. ROLE OF THE FACILITY AGENT, THE SECURITY AGENT, THE DOCUMENTATION AGENT,
THE MANDATED LEAD ARRANGERS AND THE COMPANY AS AGENT OF THE OBLIGORS
27.1 APPOINTMENT OF THE FACILITY AGENT AND THE SECURITY AGENT
(a) Each of the Finance Parties other than the Facility Agent appoints the
Facility Agent to act as its Agent under and in connection with the
Finance Documents.
(b) Each of the Finance Parties other than the Security Agent appoints the
Security Agent to act as its security agent under and in connection with
the Finance Documents.
(c) Each of the Finance Parties other than the Facility Agent authorises the
Facility Agent, and each of the Finance Parties other than the Security
Agent authorises the Security Agent, to exercise the rights, powers,
authorities and discretions specifically given to it under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.
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(d) Each of the Finance Parties other than the Facility Agent and the Security
Agent hereby grants power of attorney to the Facility Agent and the
Security Agent, respectively, to be exercised for the purposes described
in Clause 27.1(c). The Facility Agent and the Security Agent shall be
released from the restrictions of Section 181 of the German Civil Code
(Burgerliches Gesetzbuch); they are authorised to delegate their powers of
attorney, including the exemption from the restrictions of Section 181 of
the German Civil Code. At the request of the Facility Agent and/or the
Security Agent, the Mandated Lead Arrangers and the Lenders shall grant
special powers of attorney to the Facility Agent and/or the Security Agent
to enter into any Finance Documents, or any amendments thereof, on their
behalf.
27.2 DUTIES OF THE FACILITY AGENT AND THE SECURITY AGENT
(a) The Facility Agent shall promptly forward to a Party the original or a
copy of any document that is delivered to the Facility Agent for that
Party by any other Party.
(b) If the Facility Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Lenders and, where
appropriate, the Fronting Banks.
(c) The Facility Agent shall promptly notify the Lenders and, where
appropriate, the Fronting Banks of any Default arising under Clause 24.1
(Non-payment).
(d) The Facility Agent shall promptly provide the Security Agent with such
certificate(s) as the Security Agent may require as to all amounts which
are owing, actually or contingently, at any time by any Obligor to all or
any of the Finance Parties (other than the Security Agent in its capacity
as security agent) under the Finance Documents, whether or not due.
(e) The Security Agent shall promptly notify the Facility Agent of the
contents of any notice or document received by it, in its capacity as
security agent, from any of the Obligors under any of the Finance
Documents.
(f) The duties of the Facility Agent and the Security Agent under the Finance
Documents are solely mechanical and administrative in nature.
27.3 ROLE OF THE DOCUMENTATION AGENT AND THE MANDATED LEAD ARRANGERS
Except as specifically provided in the Finance Documents, the
Documentation Agent and each Mandated Lead Arranger has no obligations of
any kind to any other Party under or in connection with any Finance
Document.
27.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Facility Agent, the Security
Agent (except as expressly provided in Schedule 11 (Form of Security Trust
Agreement)), the Documentation Agent, the Fronting Banks or the Mandated
Lead Arrangers as a trustee or fiduciary of any other person.
(b) None of the Facility Agent, the Security Agent (except as expressly
provided in Schedule 11 (Form of Security Trust Agreement) or in any
Security Document), the Documentation Agent, the Fronting Banks or the
Mandated Lead Arrangers shall be bound to account to any Lender for any
sum or the profit element of any sum received by it for its own account.
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27.5 BUSINESS WITH THE GROUP
The Facility Agent, the Security Agent, the Documentation Agent, the
Fronting Banks and the Mandated Lead Arrangers may accept deposits from,
lend money to and generally engage in any kind of banking or other
business with any member of the Group.
27.6 RIGHTS AND DISCRETIONS OF THE FACILITY AGENT AND THE SECURITY AGENT
(a) The Facility Agent and the Security Agent may rely on:
(i) any communication, notice or document believed by it to be genuine,
correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or employee
of any person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify.
(b) The Facility Agent and the Security Agent may assume (unless it has
received notice to the contrary in its capacity as facility agent or, as
the case may be, as security agent) that:
(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 24.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any Party or
the Majority Lenders has not been exercised; and
(iii) any notice or request made by the Company (other than a Utilisation
Request or Selection Notice) is made on behalf of and with the
consent and knowledge of all the Obligors.
(c) Each of the Facility Agent and the Security Agent may engage, pay for and
rely on the advice or services of any lawyers, accountants, surveyors or
other experts.
(d) Each of the Facility Agent and the Security Agent may act in relation to
the Finance Documents through its personnel and agents.
27.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, each of the
Facility Agent and the Security Agent shall:
(i) act in accordance with any instructions given to it by the Majority
Lenders (or, if so instructed by the Majority Lenders, refrain from
acting or exercising any right, power, authority or discretion
vested in it as Facility Agent or Security Agent, as the case may
be); and
(ii) not be liable for any act (or omission) if it acts (or refrains
from taking any action) in accordance with such an instruction of
the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Lenders and the Mandated Lead Arrangers.
(c) Each of the Facility Agent and the Security Agent may refrain from acting
in accordance with the instructions of the Majority Lenders (or, if
appropriate, the Lenders) until it has
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received such security as it may require for any cost, loss or liability
(together with any associated VAT) which it may incur in complying with
the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, all the Lenders) each of the Facility Agent and the Security
Agent may act or refrain from taking any action or from exercising any
right, power or discretion vested in it as an agent under any Finance
Document unless and until instructed by the Majority Lenders as to whether
or not such right, power or discretion is to be exercised and, if it is to
be exercised, as to the manner in which it should be exercised.
(e) Neither the Facility Agent nor the Security Agent is authorised to act on
behalf of a Lender (without first obtaining that Lender's consent) in any
legal or arbitration proceedings relating to any Finance Document.
27.8 RESPONSIBILITY FOR DOCUMENTATION
None of the Facility Agent, the Security Agent, the Documentation Agent
and the Mandated Lead Arrangers:
(a) is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Facility
Agent, the Security Agent, the Documentation Agent, the Mandated
Lead Arrangers, an Obligor or any other person and given in or in
connection with any Finance Document or the Information
Memorandum; or
(b) is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
27.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, neither the Facility Agent nor the
Security Agent will be liable for any action taken by it under or in
connection with, or for any omission by it in relation to, any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party may take any proceedings against any officer, employee or agent
of the Facility Agent or the Security Agent in respect of any claim it
might have against the Facility Agent or the Security Agent or in respect
of any act or omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or agent of the
Facility Agent or the Security Agent may rely on this Clause.
(c) Neither the Facility Agent nor the Security Agent will be liable for any
delay (or any related consequences) in crediting an account with an amount
required under the Finance Documents to be paid by it if it has taken all
necessary steps as soon as reasonably practicable to comply with the
regulations or operating procedures of any recognised clearing or
settlement system used by it for that purpose.
27.10 LENDERS' INDEMNITY TO THE FACILITY AGENT AND THE SECURITY AGENT
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to
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their reduction to zero) indemnify the Facility Agent and the Security
Agent, within three (3) Business Days of demand, against any cost, loss
or liability incurred by the Facility Agent or the Security Agent
(otherwise than by reason of its gross negligence or wilful misconduct)
in acting as Facility Agent or, as the case may be, Security Agent under
the Finance Documents (unless it has been reimbursed by an Obligor
pursuant to a Finance Document).
27.11 RESIGNATION OF THE FACILITY AGENT OR THE SECURITY AGENT
(a) The Facility Agent or the Security Agent may resign and appoint one of its
Affiliates as successor by giving notice to the Lenders and the Company.
(b) Alternatively the Facility Agent or the Security Agent may resign by
giving notice to the Lenders and the Company, in which case the Majority
Lenders (after consultation with the Company) may appoint a successor
agent or, as the case may be, security agent.
(c) If the Majority Lenders have not appointed a successor facility agent or,
as the case may be, security agent in accordance with paragraph (b) above
within thirty (30) days after notice of resignation was given, the
Facility Agent or, as the case may be, the Security Agent (after
consultation with the Company) may appoint a successor facility agent or
security agent (acting through an office in Luxembourg).
(d) The retiring Facility Agent or Security Agent shall, at its own cost, make
available to its successor such documents and records and provide such
assistance as its successor may reasonably request for the purposes of
performing its functions as facility agent or security agent under the
Finance Documents.
(e) The Facility Agent's resignation notice shall only take effect upon:
(i) the appointment of a successor; and
(ii) the receipt by the Facility Agent of written confirmation from the
successor (in form and substance satisfactory to the Facility
Agent) that the successor agrees to be bound by the provisions of
the Finance Documents and all other related agreements to which the
Facility Agent is a party in its capacity as facility agent.
(f) The Security Agent's resignation notice shall only take effect upon:
(i) the appointment of a successor;
(ii) the receipt by the Security Agent of written confirmation from the
successor (in form and substance satisfactory to the Security
Agent) that the successor agrees to be bound by the provisions of
the Finance Documents and all other related agreements to which the
Security Agent is a party in its capacity as security agent; and
(iii) the receipt by the Facility Agent of written confirmation from the
Security Agent (in form and substance satisfactory to the Facility
Agent) that it has received, and found satisfactory, the
confirmation referred to in sub-paragraph (ii) above and that all
Security created pursuant to the Security Documents and all the
Security Agent's rights, benefits and obligations as security agent
under the Finance Documents have been transferred to its successor.
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(g) Upon any such resignation notice taking effect, the retiring Facility
Agent or Security Agent shall be discharged from any further obligation in
respect of the Finance Documents but shall remain entitled to the benefit
of this Clause 27 and, in the case of the Security Agent, of Schedule 11
(Form of Security Trust Agreement)). Its successor and each of the other
Parties shall have the same rights and obligations amongst themselves as
they would have had if such successor had been an original Party.
(h) After consultation with the Company, the Majority Lenders may, by notice
to the Facility Agent or, as the case may be, the Security Agent, require
it to resign in accordance with paragraph (b) above. In this event, the
Facility Agent or, as the case may be, the Security Agent shall resign in
accordance with paragraph (b) above.
27.12 CONFIDENTIALITY
(a) The Facility Agent (in acting as facility agent) and the Security Agent
(in acting as security agent) shall be regarded as acting through its
respective agency or security agent division which shall in each case be
treated as a separate entity from any other of its divisions or
departments.
(b) If information is received by another division or department of the
Facility Agent or, as the case may be, the Security Agent, it may be
treated as confidential to that division or department and the Facility
Agent or, as the case may be, the Security Agent shall not be deemed to
have notice of it.
(c) Notwithstanding any other provision of any Finance Document to the
contrary, none of the Facility Agent, the Security Agent, the
Documentation Agent and the Mandated Lead Arrangers is obliged to disclose
to any other person;
(i) any confidential information; or
(ii) any other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach of a
fiduciary duty.
27.13 RELATIONSHIP WITH THE LENDERS AND FRONTING BANKS
(a) The Facility Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office unless it has
received not less than five (5) Business Days prior notice from that
Lender to the contrary in accordance with the terms of this Agreement.
(b) Each Lender shall supply the Facility Agent with any information required
by the Facility Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formula).
(c) Neither the Facility Agent nor the Security Agent shall have any
obligation or liability to any Lender, and Fronting Bank or any other
person as a result of any failure by any Obligor or any other person to
perform any of its obligations under the Finance Documents.
27.14 CREDIT APPRAISAL BY THE LENDERS AND FRONTING BANKS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender and each Fronting Bank confirms to the Facility Agent, the
Security Agent, the Documentation Agent and the
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Mandated Lead Arrangers that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of
all risks arising under or in connection with any Finance Document
including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and any other agreement, Security,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
(c) whether that Lender or, as the case may be, Fronting Bank has
recourse, and the nature and extent of that recourse, against any
Party or any of its respective assets under or in connection with
any Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, Security, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with any Finance Document;
(d) the ownership, value or sufficiency of any of the Charged Assets,
the adequacy or priority of any of the Security created pursuant
to the Security Documents, the right or title of any person in or
to any Charged Assets or the existence of any Security affecting
the same;
(e) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Facility
Agent, the Security Agent, any Party or any other person under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
Security, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document; and
(f) the adequacy, accuracy and/or completeness of any communication
delivered to it under any of the Finance Documents, any legal or
other opinions, reports, valuations, certificates, appraisals or
other documents delivered or made or required to be delivered or
made at any time in connection with any of the Finance Documents
or any other report or other document, statement or information
circulated, delivered or made, whether orally or otherwise and
whether before, on or after the date of this Agreement.
27.15 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Facility Agent
shall appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.
27.16 MANAGEMENT TIME OF THE FACILITY AGENT AND THE SECURITY TRUSTEE
Any amount payable to the Facility Agent or the Security Trustee under
Clause 16.3 (Indemnity to the Facility Agent and the Security Trustee),
Clause 18 (Costs and Expenses) and Clause 27.10 (Lenders' Indemnity to
the Facility Agent and the Security Trustee) shall include the cost of
utilising its management time or other resources and will be calculated
on the basis of such reasonable daily or hourly rates as it may notify to
the Company and the Lenders, and is in addition to any fee paid or
payable to it under Clause 13 (Fees).
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27.17 PARALLEL DEBT
(a) Each of the Parties hereto agree, and the Obligors acknowledge by way of
an abstract acknowledgement of debt (abstraktes Schuldanerkenntnis) (the
"ACKNOWLEDGEMENT"), that each and every obligation of any such Obligor
(and any of its successors pursuant to this Agreement), and in relation
to the Company in the amount of e 495,000,000 under this Agreement and
the other Finance Documents shall also be owing in full to the Security
Agent (and each of the latter's successors under this Agreement), and
that accordingly the Security Agent will have its own independent right
to demand performance by such Obligor of those obligations. The Security
Agent undertakes towards the relevant Obligor that in case of any
discharge of any such obligation owing to one of the Security Agent or a
Finance Party, it will, to the same extent, not make a claim against any
Obligor under the Acknowledgement at any time, PROVIDED THAT any such
claims can be made against an Obligor if such discharge is made by virtue
of any set off, counterclaim or similar defence invoked by that Obligor
vis-{a`}-vis the Security Agent.
(b) Without limiting or affecting the Security Agent's rights against any
Obligor (whether under this paragraph or under any other provision of the
Finance Documents), the Security Agent agrees with each other Finance
Party (on a several and divided basis) that, subject as set out in the
next sentence, it will not exercise its rights under the Acknowledgement
except with the consent of the relevant Finance Party. However, for the
avoidance of doubt, nothing in the previous sentence shall in any way
limit the Security Agent's right to act in the protection or preservation
of rights under or to enforce any Security Document as contemplated by
this Agreement and/or the relevant Security Document (or to do any act
reasonably incidental to the foregoing).
27.18 THE COMPANY AS AGENT OF THE OBLIGORS
Each Obligor other than the Company irrevocably authorises the Company to
act on its behalf as its agent in relation to the Finance Documents and
irrevocably authorises:
(a) the Company on its behalf to supply all information concerning
itself, its financial condition and otherwise to the relevant
persons contemplated under this Agreement and to give all notices
and instructions (including, in the case of a Borrower (and without
limitation), Utilisation Requests and Selection Notices) and to
make any agreement capable of being made by it on its behalf under
the Finance Documents without further reference to or the consent
of such Obligor; and
(b) each Finance Party to make any communication or deliver any
document to be made or delivered to such Obligor pursuant to the
Finance Documents to the Company on its behalf in accordance with
Clause 33 (Notices),
and in each such case such Obligor will be bound thereby as though such
Obligor had itself supplied such information, given such notice and
instructions or made such agreement or, as the case may be, as if such
communication or document had been made or delivered to it in accordance
with Clause 33 (Notices).
28. THE LENDERS, THE FRONTING BANKS AND THE SUBFACILITY BANKS
28.1 LENDERS' INDEMNITY
(a) If the Company fails to comply with its obligations under Clause 8.2
(Company's Indemnity to Issuing Banks and Fronting Banks) in respect of
the Letter of Credit, the Facility Agent
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shall make demand on each Term Facility B Lender for its share of the
relevant Letter of Credit Amount in respect of the Letter of Credit and,
subject to Clause 28.2 (Direct Participation), each Term Facility B Lender
shall indemnify each Fronting Bank or each Issuing Bank, respectively, for
that Term Facility B Lender's Letter of Credit Proportion of such Letter
of Credit Amount.
(b) If any Borrower fails to comply with its payment obligations under any
Subfacility in case of termination of such Subfacility in accordance with
Clause 2.2 (e) or the scheduled maturity of such Subfacility, the
Facility Agent shall make demand on each Revolving Credit Facility Lender
for its proportionate share of the relevant amount of such Subfacility,
and subject to Clause 28.2 (Direct Participation), each Revolving Credit
Facility Lender shall indemnify each Subfacility Bank for that Revolving
Credit Facility Lender's proportion in such Subfacility in relation to
such Revolving Credit Facility Lender's Available Commitment under the
Revolving Credit Facility.
28.2 DIRECT PARTICIPATION
(a) If any Term Facility B Lender is not permitted (by its constitutional
documents or any applicable law) to comply with Clause 28.1(a) (Lenders'
Indemnity) then that Term Facility B Lender will not be obliged to comply
with Clause 28.1(a) (Lenders' Indemnity) and shall instead be deemed to
have taken on the date the Letter of Credit is issued (or, if later, on
the date that any Letter of Credit Proportion in respect of the Letter of
Credit is transferred or assigned to such Term Facility B Lender in
accordance with the terms of this Agreement), an undivided interest and
participation in the Letter of Credit in an amount equal to that Term
Facility B Lender's Letter of Credit Proportion of the Letter of Credit.
(b) On receipt of demand by the Facility Agent in accordance with Clause
28.1(a) (Lenders' Indemnity), each such Term Facility B Lender shall pay
to the Facility Agent (for the account of the Fronting Bank) its Letter of
Credit Proportion of any Letter of Credit Amount.
(c) If any Revolving Credit Facility Lender is not permitted (by its
constitutional documents or any applicable law) to comply with Clause
28.1(b) (Lenders' Indemnity) then that Revolving Credit Facility Lender
will not be obliged to comply with Clause 28.1(b) (Lenders' Indemnity) and
shall instead be deemed to have taken on the date Subfacility is agreed,
an undivided interest and participation in the Subfacility in an amount
equal to that Revolving Credit Facility Lender's proportion of the
Subfacility.
(d) On receipt of demand by the Facility Agent in accordance with Clause
28.1(b) (Lenders' Indemnity), each such Revolving Credit Facility Lender
shall pay to the Facility Agent (for the account of the Subfacility Bank)
its proportion of the relevant Subfacility.
28.3 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Term Facility B Lender and/or Subfacility
Bank in this Clause 28 nor the rights, powers and remedies conferred upon
any Fronting Bank, Issuing Bank and/or Subfacility Bank by this Agreement
or by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of
the relevant Fronting Bank, Issuing Bank and/or Subfacility Bank,
any Borrower or any other person or any change in the status,
function, control or ownership of any of them;
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(b) any of the obligations of the relevant Fronting Bank, Issuing Bank
and/or Subfacility Bank, any Borrower or any other person under
this Agreement, under the Letter of Credit, any Subfacility or
under any other security taken in respect of any Borrower's
obligations under this Agreement or otherwise in connection with
the Letter of Credit and/or any Subfacility, respectively, being or
becoming illegal, invalid, unenforceable or ineffective in any
respect;
(c) time or other indulgence being granted or agreed to be granted to
the relevant Fronting Bank, Subfacility Bank, any Borrower or any
other person in respect of the obligations of any of them under
this Agreement, under the Letter of Credit and/or any Subfacility,
respectively, or under any other security taken in respect of any
Borrower's obligations under this Agreement or otherwise in
connection with the Letter of Credit and/or any Subfacility,
respectively;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the relevant Fronting Bank, Subfacility Bank, any
Borrower or any other person under this Agreement, under the Letter
of Credit and/or any Subfacility, respectively, or under any other
security taken in respect of any Borrower's obligations under this
Agreement or otherwise in connection with the Letter of Credit
and/or Subfacility, resepctively; and
(e) any other act, event or omission which, but for this Clause 28,
might operate to discharge, impair or otherwise affect any of the
obligations of each Term Facility B Lender and/or Revolving Credit
Facility Lender, respectively,contained in this Agreement or any of
the rights, powers or remedies conferred upon any Fronting Bank
and/or Subfacility Bank by this Agreement or by law.
The obligations of each Lender contained in this Agreement shall be in
addition to and independent of every other security which any Fronting
Bank and/or Subfacility Bank may at any time hold in respect of any
Borrower's obligations under this Agreement or otherwise in connection
with any Letter of Credit and/or Subfacility, respectively.
28.4 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Term Facility B Lender and a
Fronting Bank shall be conditional upon no security or payment to any
Fronting Bank by a Term Facility B Lender or any other person on behalf
of a Term Facility B Lender being avoided or reduced by virtue of any
laws relating to bankruptcy, insolvency, liquidation or similar laws of
general application and, if any such security or payment is so avoided or
reduced, such Fronting Bank shall be entitled to recover the value or
amount of such security or payment from such Term Facility B Lender
subsequently as if such settlement or discharge had not occurred. The
same shall apply mutatis mutandis in relation to a Revolving Credit
Facility Lender and a Subfacility Bank.
28.5 EXERCISE OF RIGHTS
No Fronting Bank and no Subfacility Bank, respectively, shall be obliged
before exercising any of the rights, powers or remedies conferred upon it
in respect of any Term Facility B Lender and Revolving Credit Facility
Lender, respectively, by this Agreement or by law:
(a) to take any action or obtain judgment in any court against any
Obligor;
(b) to make or file any claim or proof in a winding-up or dissolution
of any Obligor; or
115
(c) to enforce or seek to enforce any other security taken in respect
of any of the obligations of the Obligors under this Agreement.
29. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax.
30. SHARING AMONG THE LENDERS
30.1 PAYMENTS TO LENDERS
If a Lender (a "RECOVERING LENDER") receives or recovers any amount from
an Obligor (including by way of set-off in accordance with Clause 32
(Set-off)) other than in accordance with Clause 31 (Payment Mechanics)
and applies that amount to a payment due under the Finance Documents
then:
(a) the Recovering Lender shall, within three (3) Business Days,
notify details of the receipt or recovery to the Facility Agent;
(b) the Facility Agent shall determine whether the receipt or recovery
is in excess of the amount the Recovering Lender would have been
paid had the receipt or recovery been received or made by the
Facility Agent and distributed in accordance with Clause 31
(Payment Mechanics), without taking account of any Tax which would
be imposed on the Facility Agent in relation to the receipt,
recovery or distribution; and
(c) the Recovering Lender shall, within three (3) Business Days of
demand by the Facility Agent, pay to the Facility Agent an amount
(the "SHARING PAYMENT") equal to such receipt or recovery less any
amount which the Facility Agent determines may be retained by the
Recovering Lender as its share of any payment to be made, in
accordance with Clause 31.5 (Partial Payments).
30.2 REDISTRIBUTION OF PAYMENTS
The Facility Agent shall treat the Sharing Payment as if it had been paid
by the relevant Obligor and distribute it between the Finance Parties
(other than the Recovering Lender) in accordance with Clause 31.5
(Partial Payments).
30.3 RECOVERING LENDER'S RIGHTS
(a) On a distribution by the Facility Agent under Clause 30.2 (Redistribution
of Payments), the Finance Parties that have shared in the redistribution
shall assign to the Recovering Lender their rights to the payments that
were redistributed.
116
(b) If and to the extent that the Recovering Lender is not able to rely on its
rights under paragraph (a) above, the relevant Obligor shall be liable to
the Recovering Lender for a debt equal to the Sharing Payment that is
immediately due and payable.
30.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 30.2 (Redistribution of Payments)
shall, upon request of the Facility Agent, pay to the Facility
Agent for account of that Recovering Lender an amount equal to its
share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Lender for its proportion
of any interest on the Sharing Payment which that Recovering
Lender is required to pay); and
(b) that Recovering Lender's rights to take the benefit of an
assignment in respect of any reimbursement shall be cancelled and
the relevant Obligor will be liable to the reimbursing Lender for
the amount so reimbursed.
30.5 EXCEPTIONS
(a) This Clause 30 shall not apply to the extent that the Recovering Lender
would not, after making any payment pursuant to this Clause, have a valid
and enforceable claim against the relevant Obligor.
(b) A Recovering Lender is not obliged to share with any other Lender any
amount which the Recovering Lender has received or recovered as a result
of taking legal or arbitration proceedings if:
(i) it notified the other Lenders of the legal or arbitration
proceedings; and
(ii) the other Lenders had an opportunity to participate in those legal
or arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal
or arbitration proceedings.
SECTION 11
ADMINISTRATION
31. PAYMENT MECHANICS
31.1 PAYMENTS TO THE FACILITY AGENT
(a) On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor (subject to Clause 31.9
(Payments to the Security Agent)) or that Lender shall make the same
available to the Facility Agent (unless a contrary indication appears in
a Finance Document) for value on the due date at the time and in such
funds specified by the Facility Agent as being customary at the time for
settlement of transactions in the relevant currency in the place of
payment.
117
(b) Payment shall be made to such account in the principal financial centre
of the country of that currency (or, in relation to Euro, in a principal
financial centre in a Participating Member State or London) with such
bank as the Facility Agent specifies.
31.2 DISTRIBUTIONS BY THE FACILITY AGENT
Each payment received by the Facility Agent under the Finance Documents
for another Party shall, subject to Clause 31.3 (Distributions to an
Obligor), Clause 31.4 (Clawback) and Clause 31.9 (Payments to the
Security Agent), be made available by the Facility Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Facility Agent by not less than five (5) Business Days' notice with a
bank in the principal financial centre of the country of that currency
(or, in relation to Euro, in a principal financial centre in a
Participating Member State or London).
31.3 DISTRIBUTIONS TO AN OBLIGOR
Each of the Facility Agent and the Security Agent may (with the consent
of the Obligor or in accordance with Clause 32 (Set-Off)) apply any
amount received by it for that Obligor in or towards payment (on the date
and in the currency and funds of receipt) of any amount due from that
Obligor under the Finance Documents or in or towards purchase of any
amount of any currency to be so applied.
31.4 CLAWBACK
(a) Where a sum is to be paid to the Facility Agent or the Security Agent
under the Finance Documents for another Party, the Facility Agent or, as
the case may be, the Security Agent is not obliged to pay that sum to
that other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction that it
has actually received that sum.
(b) If the Facility Agent or the Security Agent pays an amount to another
Party and it proves to be the case that it had not actually received that
amount, then the Party to whom that amount (or the proceeds of any
related exchange contract) was paid shall on demand refund the same to
the Facility Agent or, as the case may be, the Security Agent, together
with interest on that amount from the date of payment to the date of
receipt by the Facility Agent or, as the case may be, the Security Agent,
calculated by it to reflect its cost of funds.
31.5 PARTIAL PAYMENTS
(a) If the Facility Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an Obligor under the Finance
Documents, the Facility Agent shall apply that payment towards the
obligations of that Obligor under the Finance Documents in the following
order:
(i) FIRST, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Facility Agent, the Security Agent, the
Documentation Agent or the Mandated Lead Arrangers under the
Finance Documents;
(ii) SECONDLY, in or towards payment of any demand made by an Issuing
Bank or Fronting Bank in respect of a payment made or to be made by
it under the Letter of Credit due but unpaid;
118
(iii) THIRDLY, in or towards payment pro rata of any accrued interest or
commission due or Fronting Fees but unpaid under this Agreement;
(iv) FOURTHLY, in or towards payment pro rata of any Outstandings due
but unpaid under this Agreement; and
(v) FIFTHLY, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Facility Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by an
Obligor.
31.6 NO SET-OFF BY OBLIGORS
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim, except in respect of claims of an Obligor
which are either undisputed between the relevant Finance Party and that
Obligor or which have been the subject of a final court judgement.
31.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a Business Day
shall be made on the next Business Day in the same calendar month (if
there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or an
Unpaid Sum under this Agreement interest is payable on the principal at
the rate payable on the original due date.
31.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (f) below, the Euro is the currency of
account and payment for any sum due from an Obligor under any Finance
Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum
shall be made in the currency in which that Loan or Unpaid Sum is
denominated on its due date.
(c) Each payment in respect of the Letter of Credit (including any Cash
Collateral in respect of the Letter of Credit) shall be made in the
currency in Euros.
(d) Each payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued.
(e) Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.
(f) Any amount expressed to be payable in a currency other than Euros shall be
paid in that other currency.
119
31.9 PAYMENTS TO THE SECURITY AGENT
Notwithstanding any other provision of any Finance Document, at any time
after any of the Transaction Security becomes enforceable, the Security
Agent may require:
(a) any Obligor to pay all sums due from it under any Finance
Document; or
(b) the Facility Agent to pay all sums received or recovered from any
Obligor under any Finance Document,
in each case as the Security Agent may direct for application in
accordance with the terms of the Finance Documents.
32. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
33. NOTICES
33.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
33.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
(a) in the case of the Company, that identified with its name below;
(b) in the case of each Lender, each Fronting Bank or any other
Obligor, that notified in writing to the Facility Agent on or
prior to the date on which it becomes a Party;
(c) in the case of the Mandated Lead Arrangers, the Documentation
Agent, the Facility Agent and the Security Agent, that identified
with its name below;
(d) in the case of any successor Agent, that notified in writing to
the retiring Agent on or prior to the date on which the
resignation notice of the retiring Agent takes effect; and
(e) in the case of any successor Security Agent, that notified in
writing to the Facility Agent on or prior to the date on which the
resignation notice of the retiring Security Agent takes effect.
or any substitute address, fax number or department or officer as the
Party may notify to the Facility Agent (or the Facility Agent may notify
to the other Parties, if a change is made by the Facility Agent) by not
less than five (5) Business Days' notice.
120
33.3 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 (5) Business Days after being deposited in the post postage
prepaid in an envelope addressed to it at that address,
and, if a particular department or officer is specified as part of its
address details provided under Clause 33.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the Facility
Agent or the Security Agent will be effective only when actually received
by it and then only if it is expressly marked for the attention of the
department or officer identified with its signature below (or any
substitute department or officer as it shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the Facility
Agent.
(d) Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or delivered
to each of the Obligors.
33.4 NOTIFICATION OF ADDRESS, FAX NUMBER
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 33.2 (Addresses) or
changing its own address or fax number, the Facility Agent shall notify
the other Parties.
33.5 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document must be
in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so reasonably required by the Facility
Agent, accompanied by an English translation and, in this case, the
English translation will prevail unless the document is a
constitutional, statutory or other official document.
34. CALCULATIONS AND CERTIFICATES
34.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
34.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document and by an Issuing Bank or a Fronting Bank as
to the amount paid out by that
121
Issuing Bank or Fronting Bank in respect of the Letter of Credit is, in
the absence of manifest error, conclusive evidence of the matters to
which it relates.
34.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
35. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
36. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise of
any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
37. AMENDMENTS AND WAIVERS
37.1 REQUIRED CONSENTS
(a) Subject to Clause 37.2 (Exceptions), any term of the Finance Documents
may be amended or waived only with the consent of the Majority Lenders
and the Obligors and any such amendment or waiver will be binding on all
Parties.
(b) The Facility Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause 37.
37.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which relates
to:
(i) the definition of "MAJORITY LENDERS" in Clause 1.1 (Definitions);
(ii) the length of any or all of the Availability Periods;
(iii) an extension to the date of payment of any amount under the Finance
Documents;
(iv) the currency in which any payment under any Finance Document is to
be made;
(v) a reduction in the Margin, the Letter of Credit Commission Rate,
the Guarantee Commission Rate or the amount of any payment of
principal, interest, fees or commission payable;
(vi) an increase in Commitment;
122
(vii) a change to the Borrowers or Guarantors other than in accordance
with Clause 26 (Changes to the Obligors);
(viii) any provision which expressly requires the consent of all the
Lenders;
(ix) Clause 2.2 (Finance Parties' Rights and Obligations), Clause 25
(Changes to the Lenders) or this Clause 37; or
(x) a release of Security created pursuant to a Security Document,
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver that relates to the rights or obligations of the
Facility Agent, the Security Agent or the Mandated Lead Arrangers may not
be effected without the consent of the Facility Agent, the Security Agent
or the Mandated Lead Arrangers, as the case may be.
37.3 AMENDMENTS BY THE COMPANY AS AGENT OF THE OBLIGORS
The Company (acting on behalf of each Obligor) may agree to any amendment
to or modification of the provisions of any of the Finance Documents, or
grant any waiver or consent in relation to any of the Finance Documents,
and the Obligors will be bound by any such amendment, modification,
waiver or consent, except where the Facility Agent has received written
notice to the contrary from an Obligor prior to the date of any such
amendment or modification.
38. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
SECTION 12
GOVERNING LAW AND ENFORCEMENT
39. GOVERNING LAW
This Agreement is governed by German law.
40. ENFORCEMENT
40.1 JURISDICTION OF GERMAN COURTS
(a) The courts of Frankfurt am Main have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement (including a
dispute regarding the existence, validity or termination of this
Agreement) (a "Dispute").
(b) No Finance Party shall be prevented from taking proceedings relating to a
Dispute in any other courts of competent jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent proceedings in
any number of jurisdictions.
123
40.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor incorporated in the Federal
Republic of Germany):
(a) irrevocably appoints the Company as its agent for service of
process in relation to any proceedings before the German courts in
connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
40.3 WAIVER OF IMMUNITY
To the extent that any of the Obligors may in any jurisdiction claim for
itself or its assets immunity from suit, execution, attachment (whether
in aid of execution before judgment or otherwise) or other legal process
and to the extent that in any such jurisdiction there may be attributed
to itself or its assets such immunity (whether or not claimed), such
Obligor irrevocably agrees not to claim and irrevocably waives such
immunity to the full extent permitted by the laws of such jurisdiction.
40.4 CONFIRMATIONS PURSUANT TO SECTION 8 MONEY LAUNDERING ACT
Each Borrower expressly confirms towards each Finance Party that all
funds made available to it under this Agreement have been drawn for the
its own account, and that it is the economic beneficiary (wirtschaftlich
Begunstigter) within the meaning of Section 8 Money Laundering Act
(Geldwaschegesetz).
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING
OF THIS AGREEMENT.
124
SCHEDULE 1
THE ORIGINAL PARTIES
PART I
THE ORIGINAL OBLIGORS
NAME OF ORIGINAL BORROWER JURISDICTION OF INCORPORATION AND REGISTRATION NUMBER (OR EQUIVALENT, IF ANY)
-------------------------------------------------------------------------------------------------------------------------
SGL Carbon Aktiengesellschaft Germany, registered with the local court Wiesbaden under HRB 9448
-------------------------------------------------------------------------------------------------------------------------
SGL Carbon Beteiligung GmbH, Wiesbaden Germany, registered with the local court Wiesbaden under HRB 11330
-------------------------------------------------------------------------------------------------------------------------
SGL ACOTEC GmbH, Siershahn Germany, registered with the local court Montabaur under HRB 6481
-------------------------------------------------------------------------------------------------------------------------
SGL TECHNOLOGIES GmbH, Meitingen Germany, registered with the local court Augsburg under HRB 18142
-------------------------------------------------------------------------------------------------------------------------
SGL Brakes GmbH, Meitingen Germany, registered with the local court Augsburg under HRB 18592
-------------------------------------------------------------------------------------------------------------------------
SGL CARBON S.p.A, Milan Italy, [ ]
-------------------------------------------------------------------------------------------------------------------------
SGL CARBON S.A., La Coruna Spain, [ ]
-------------------------------------------------------------------------------------------------------------------------
SGL CARBON LLC, Charlotte, North Carolina USA, [ ]
-------------------------------------------------------------------------------------------------------------------------
NAME OF ORIGINAL GUARANTOR JURISDICTION OF INCORPORATION AND REGISTRATION NUMBER (OR EQUIVALENT, IF ANY)
-------------------------------------------------------------------------------------------------------------------------
SGL Carbon Aktiengesellschaft Germany, registered with the local court Wiesbaden under HRB 9448
-------------------------------------------------------------------------------------------------------------------------
SGL Carbon GmbH Germany, registered with the local court Augsburg under HRB 16474
-------------------------------------------------------------------------------------------------------------------------
SGL Carbon Beteiligung GmbH, Wiesbaden Germany, registered with the local court Wiesbaden under HRB 11330
-------------------------------------------------------------------------------------------------------------------------
SGL ACOTEC GmbH, Siershahn Germany, registered with the local court Montabaur under HRB 6481
-------------------------------------------------------------------------------------------------------------------------
KCH Beteiligungs GmbH, Siershahn Germany, registered with the local court Montabaur under HRB 6169
-------------------------------------------------------------------------------------------------------------------------
125
SGL TECHNOLOGIES GmbH, Meitingen Germany, registered with the local court Augsburg under HRB 18142
-------------------------------------------------------------------------------------------------------------------------
SGL Brakes GmbH, Meitingen Germany, registered with the local court Augsburg under HRB 18592
-------------------------------------------------------------------------------------------------------------------------
SGL CARBON S.p.A, Milan Italy, [ ]
-------------------------------------------------------------------------------------------------------------------------
SGL CARBON S.A., La Coruna Spain, [ ]
-------------------------------------------------------------------------------------------------------------------------
SGL CARBON LLC, Charlotte, North Carolina USA, [ ]
-------------------------------------------------------------------------------------------------------------------------
126
PART II
THE ORIGINAL LENDERS
NAME OF ORIGINAL LENDER TERM FACILITY A TERM FACILITY B TERM FACILITY C REVOLVING CREDIT FACILITY
COMMITMENT COMMITMENT COMMITMENT COMMITMENT
-------------------------------------------------------------------------------------------------------------------------
MANDATED LEAD ARRANGERS
-------------------------------------------------------------------------------------------------------------------------
DEUTSCHE BANK LUXEMBOURG S.A. e 60,358,742 e 11,281,532 e 0 e 17,329,226
-------------------------------------------------------------------------------------------------------------------------
DRESDNER BANK AG e 60,358,742 e 11,281,532 e 0 e 17,329,226
-------------------------------------------------------------------------------------------------------------------------
ARRANGERS
-------------------------------------------------------------------------------------------------------------------------
BAYERISCHE LANDESBANK e 45,842,105 e 11,631,579 e 0 e 7,526,316
-------------------------------------------------------------------------------------------------------------------------
CO-ARRANGERS
-------------------------------------------------------------------------------------------------------------------------
COMMERZBANK AKTIENGESELL- e 28,210,526 e 7,157,895 e 0 e 4,631,579
SCHAFT
-------------------------------------------------------------------------------------------------------------------------
WESTLB AG e 28,210,526 e 7,157,895 e 0 e 4,631,579
-------------------------------------------------------------------------------------------------------------------------
SENIOR LEAD MANAGER
-------------------------------------------------------------------------------------------------------------------------
DZ-BANK e 21,635,358 5,489,568 e 0 e 3,552,074
-------------------------------------------------------------------------------------------------------------------------
BAYERISCHE HYPO- UND e 0 e 31,000,000 e 0 e 0
VEREINSBANK AG
-------------------------------------------------------------------------------------------------------------------------
IKB DEUTSCHE INDUSTRIEBANK AG e 29,784,000 e 0 e 0 e 0
-------------------------------------------------------------------------------------------------------------------------
KREDITANSTALT FUR e 10,000,000 e 0 e 20,000,000 e
WIEDERAUFBAU
-------------------------------------------------------------------------------------------------------------------------
MANAGERS
-------------------------------------------------------------------------------------------------------------------------
127
NAME OF ORIGINAL LENDER TERM FACILITY A TERM FACILITY B TERM FACILITY C REVOLVING CREDIT FACILITY
COMMITMENT COMMITMENT COMMITMENT COMMITMENT
-------------------------------------------------------------------------------------------------------------------------
LANDESBANK SACHSEN e 10,000,000 e 0 e 0 e 0
-------------------------------------------------------------------------------------------------------------------------
MHB MITTELEUROPAISCHE HANDELSBANK AG e 10,000,000 e 0 e 0 e 0
-------------------------------------------------------------------------------------------------------------------------
NASSAUISCHE SPARKASSE e 10,000,000 e 0 e 0 e 0
-------------------------------------------------------------------------------------------------------------------------
PARTICIPANTS
-------------------------------------------------------------------------------------------------------------------------
KBC e 5,000,000 e 0 e 0 e 0
-------------------------------------------------------------------------------------------------------------------------
KREISSPARKASSE AUGSBURG e 3,000,000 e 0 e 0 e 0
-------------------------------------------------------------------------------------------------------------------------
LFA FORDERBANK BAYERN e 7,500,000 e 0 e 0 e 0
-------------------------------------------------------------------------------------------------------------------------
RLB OBEROSTERREICH e 5,100,000 e 0 e 0 e 0
-------------------------------------------------------------------------------------------------------------------------
TOTAL e 335,000,000 e 85,000,000 e 20,000,000 e 55,000,000
-------------------------------------------------------------------------------------------------------------------------
128
SCHEDULE 2
CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT
PART I
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. CORPORATE DOCUMENTS
(a) A copy of the constitutional documents of each Original Obligor in the
form required by the Facility Agent (i.e. in relation to (1) USA, Articles
of Association; By-Laws; Good Standing Certificate; Incumbency
Certificate; (2) ITALY, Articles of Association (atto costitutivo);
by-laws (statuto in vigore); (3) SPAIN, Deed of Incorporation; certified
commercial register excerpt), including in relation to a German Obligor an
up-to-date officially certified commercial register extract (beglaubigter
Handelsregisterauszug) and the articles of association (Satzung).
(b) A copy of a resolution of the shareholders (or the equivalent thereof,
i.e. in relation to (1) USA, a Board of Directors' Resolution; (2) ITALY,
[Depends on the By-Laws of the company, information to be provided, (3)
SPAIN, Minutes of the General Shareholders' Sole Shareholder Decision and
Board of Directors Meeting) of each Original Obligor:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it
execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant,
any Utilisation Request and Selection Notice) to be signed and/or
despatched by it under or in connection with the Finance Documents
to which it is a party.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certificate of the Company (signed by a director or other authorised
officer) confirming that borrowing or guaranteeing, as appropriate, the
Total Commitments would not cause a violation of any contract of any
Original Obligor.
(e) A copy of the constitutional documents of each member of the Group whose
shares are subject to Security under any of the Security Documents
referred to in Part I para. 3 (a) in the form required by the Facility
Agent.
(f) The Group Structure Chart showing all the Intra-Group Loans and all
members of the Group.
(g) A certificate of an authorised signatory of each Original Obligor
certifying that to the best of its knowledge each copy document relating
to it specified in this paragraph 1 is correct, complete and has not been
amended as at a date no earlier than the date of this Agreement.
129
2. Finance Documents
Each of the following original documents duly executed by all of the
parties thereto:
(a) this Agreement; and
(b) each Fee Letter.
3. TRANSACTION SECURITY DOCUMENTS
Each of the following documents in form and substance satisfactory to the
Security Agent duly executed by all the parties thereto:
(a) a first ranking pledge over the shares of each German Material
Subsidiary except for SGL PanTrac GmbH;
(b) a first ranking mortgage/land charge over the real property of
- SGL CARBON AG, except for the real property situated in Bonn, Bad
Godesberg and registered with the local court Bonn, land register
of Lannesdorf, file (Xxxxx) No. 01017 and 0409 (which will be
encumbered pursuant Schedule 2, Part II) (on the Closing Date all
necessary steps will be taken to effect registration in the
relevant German land register/s, including the joint instruction of
a notary to effect filing as soon as possible with the relevant
German land register/s, including execution of a security purpose
agreement and a submission to immediate foreclosure (Unterwerfung
unter die sofortige Zwangsvollstrechung) in a partial amount of the
registered amount or in the whole registered amount upon the
Facility Agent's reasonable request);
(c) a first ranking charge/security assignment over the equipment and
inventory of
(i) SGL CARBON GmbH, Meitingen, Germany,
(ii) SGL ACOTEC GmbH, Siershahn, Germany;
(iii) SGL TECHNOLOGIES GmbH, Meitingen, Germany; and
(iv) SGL Brakes GmbH, Meitingen, Germany;
(d) a first ranking charge/assignment over all receivables, including
intercompany receivables, of
(i) SGL CARBON AG;
(ii) SGL CARBON GmbH, Meitingen, Germany;
(iii) SGL CARBON Beteiligung GmbH, Wiesbaden, Germany;
(iv) SGL ACOTEC GmbH, Siershahn, Germany;
(v) KCH Beteiligungs GmbH, Siershahn, Germany;
(vi) SGL TECHNOLOGIES GmbH, Meitingen, Germany; and
130
(vii) SGL Brakes GmbH, Meitingen, Germany;
(e) a pledge of/charge over all bank accounts of
(i) SGL CARBON AG;
(ii) SGL CARBON GmbH, Meitingen, Germany;
(iii) SGL CARBON Beteiligung GmbH, Wiesbaden, Germany;
(iv) SGL ACOTEC GmbH, Siershahn, Germany,
(v) KCH Beteiligungs GmbH, Siershahn, Germany;
(vi) SGL TECHNOLOGIES GmbH, Meitingen, Germany; and
(vii) SGL Brakes GmbH, Meitingen, Germany;
(f) an assignment of/charge over the Intellectual Property Rights of
(i) SGL CARBON AG;
(ii) SGL CARBON GmbH, Meitingen, Germany;
(iii) SGL CARBON Beteiligung GmbH, Wiesbaden, Germany;
(iv) SGL ACOTEC GmbH, Siershahn, Germany;
(v) KCH Beteiligungs GmbH, Siershahn, Germany;
(vi) SGL TECHNOLOGIES GmbH, Meitingen, Germany; and
(vii) SGL Brakes GmbH, Meitingen, Germany;
(g) the Security Trust Agreement.
4. ACCOUNTS AND REPORTS
(a)The Base Financial Statements.
(b)The Group Structure Chart.
(c)The Information Memorandum.
5. LEGAL OPINIONS
(a) Legal opinions of (i) Shearman & Sterling, Germany, counsels to the
Company in Germany, (ii) Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P.,
Charlotte, North Carolina/USA, US counsels, (iii) Xxxxxxx Erede
Xxxxxxxxxx, Studio Legale, Milano, Italy, Italian counsels and, Uria,
Spain, Spanish counsels, addressed to the Secured Parties confirming that
the Company and the other members of the Group are duly organised and
validly existing and confirming the capacity and authorisation of the
Company and the other members of the Group to enter into the Finance
Documents in form and substance satisfactory to the Facility Agent.
131
(b) A legal opinion of Shearman & Sterling, USA, US legal advisers to the
Company, addressed to the Secured Parties and in the form of Schedule 18.
(c) A legal opinion of Xxxxx & XxXxxxxx, legal advisers in Germany to the
Mandated Lead Arrangers, the Documentation Agent, the Security Agent and
the Facility Agent in the Federal Republic of Germany, substantially in
the form distributed to the Original Lenders prior to signing this
Agreement.
6. OTHER DOCUMENTS AND EVIDENCE
(a) Evidence that the fees, costs and expenses then due from the Company
pursuant to Clause 13 (Fees) and Clause 18 (Costs and Expenses) have been
paid or will be paid by the first Utilisation Date.
(b) Evidence that the Minimum Guarantor Coverage pursuant to Clause 22.5
(Minimum Guarantor Coverage) amounts to at least eighty-five (85) per
cent. of the Consolidated EBITDA and/or turnover of the Group.
(c) If an Original Obligor is incorporated in a jurisdiction other than the
Federal Republic of Germany, evidence that the process agent specified in
Clause 40.2 (Service of Process) has accepted its appointment in relation
to that Original Obligor.
132
PART II
CONDITIONS SUBSEQUENT TO INITIAL UTILISATION
The Company shall ensure that no later than three (3) Months after the
date of this Agreement, all of the documents and other evidence listed in
this Part II of Schedule 2 (Conditions Subsequent and Conditions
Subsequent) shall be delivered to the Facility Agent, each in form and
substance satisfactory to the Security Agent:
(1) evidence of the registration in the land register of all German
mortgages relating to Transaction Security and a first ranking
mortgage/land charge over the real property of SGL CARBON AG
situated in Bonn, Bad Godesberg and registered with the local court
Bonn, land register of Lannesdorf, file (Xxxxx) No. 01017 and 0409,
in respect of which all necessary steps will have been taken to
effect registration in the relevant German land register/s,
including the joint instruction of a notary to effect filing as
soon as possible with the relevant German land register/s and
including a submission to immediate foreclosure (Unterwerfung unter
die sofortige Zwangsvollstrechung) in a partial amount of the
registered amount or in the whole registered amount upon the
Facility Agent's reasonable request; and
(2) each of the following documents duly executed by all the parties
thereto:
(a) a first ranking pledge over the shares of each non-German Material
Subsidiary except for SGL Carbon S.A., Nowy Sacz, Poland;
(b) a first ranking mortgage/land charge over the real property of:
(i) SGL CARBON S.p.A., Milan, Italy;
(ii) SGL CARBON LLC, Charlotte, U.S.A.; and
(iii) SGL TECHNIC, Inc., U.S.A.;
(c) a first ranking charge/security assignment over the equipment and
inventory of
(i) SGL CARBON S.p.A., Milan, Italy;
(ii) SGL CARBON LLC, Charlotte, U.S.A.; and
(iii) SGL TECHNIC, Inc., Valencia, U.S.A.;
(d) a first ranking charge/assignment over all receivables, including
intercompany receivables, of
(i) RADION Finanziaria S.p.A., Milan, Italy;
(ii) SGL CARBON S.p.A., Milan, Italy,
(iii) SGL CARBON LLC, Charlotte, U.S.A.;
(iv) SGL TECHNIC, Inc., Valencia, U.S.A.; and
(v) SGL HITCO ACQUISITION Corp., Charlotte, U.S.A.;
133
(e) a pledge of/charge over all bank accounts of
(i) RADION Finanziaria S.p.A., Milan, Italy,
(ii) SGL CARBON S.p.A., Milan, Italy;
(iii) SGL CARBON LLC, Charlotte, U.S.A.; and
(vi) SGL TECHNIC, Inc., Valencia, U.S.A..
(f) an assignment of/charge over the Intellectual Property Rights of
(i) RADION Finanziaria S.p.A., Milan, Italy;
(ii) SGL CARBON S.p.A., Milan, Italy;
(iii) SGL CARBON LLC, Charlotte, U.S.A.;
(iv) SGL TECHNIC, Inc., Valencia, U.S.A.; and
(v) SGL HITCO ACQUISITION Corp., Charlotte, U.S.A.
(3) A copy of the constitutional documents of each member of the Group
whose shares are subject to Security under any of the Security
Documents referred to in this Part II of Schedule 2 para. 2 in the
form required by the Facility Agent.
134
PART III
CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY A PROPOSED ADDITIONAL OBLIGOR
1. An Accession Letter, duly executed by the proposed Additional Obligor and
the Company (and subject to appropriate Guarantee limitation wording
relating to the respective Additional Obligor in case of legal
restrictions and potential officer's liability).
2. A copy of the constitutional documents of the proposed Additional Obligor
in the form reasonably required by the Facility Agent.
3. A copy of a resolution of the shareholders and/or board of directors (or
the equivalent thereof) of the proposed Additional Obligor:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including, in
relation to a proposed Additional Borrower, any Utilisation
Request or Selection Notice) to be signed and/or despatched by it
under or in connection with the Finance Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. Where the Lenders determine such to be either necessary or desirable,
either in place of or in addition to the resolution referred to in
paragraph 3 above, a certificate or extract from a public commercial
registry or equivalent evidence setting out the names and signatures of
the persons authorised to execute the Accession Letter on behalf of the
proposed Additional Obligor and to sign and/or despatch all documents and
notices (including, if relevant, any Utilisation Request and Selection
Notice) to be signed and/or despatched by it under or in connection with
the Finance Documents.
6. A certificate of the proposed Additional Obligor (signed by a director or
other authorised officer) confirming that borrowing or guaranteeing, as
appropriate, the Total Commitments would not cause any borrowing,
guaranteeing or similar limit binding on it to be exceeded.
7. A certificate of an authorised signatory of the proposed Additional
Obligor certifying that each copy document listed in this Part III of
Schedule 2 is correct, complete and in full force and effect as at a date
no earlier than the date of the Accession Letter.
8. A copy of any other Authorisation or other document which the Facility
Agent considers to be necessary or desirable in connection with the entry
into and performance of the transactions contemplated by the Accession
Letter or for the validity and enforceability of any Finance Document.
9. If available, the latest audited financial statements of the proposed
Additional Obligor.
10. A legal opinion of Xxxxx & XxXxxxxx, legal advisers to the Mandated Lead
Arrangers, the Security Agent and the Facility Agent in the Federal
Republic of Germany.
135
11. A legal opinion satisfactory to the Lenders of the legal advisers to the
Company in the jurisdiction in which the proposed Additional Obligor is
incorporated opining on the due organisation and valid existence and
confirming the capacity and authorisation of the Additional Obligor to
enter into the Finance Documents.
12. If the proposed Additional Obligor is incorporated in a jurisdiction
other than the Federal Republic of Germany, evidence that the process
agent specified in Clause 40.2 (Service of Process), if not an Obligor,
has accepted its appointment in relation to the proposed Additional
Obligor.
13. Accession to the Security Trust Agreement.
136
SCHEDULE 3
REQUESTS
PART I
UTILISATION REQUEST
From: [name of relevant Borrower]
To: Deutsche Bank Luxembourg S.A.
Dated:
Dear Sirs
SGL CARBON AKTIENGESELLSCHAFT - e 495,000,000 FACILITIES AGREEMENT
DATED [ ] 2002 (THE "FACILITIES AGREEMENT")
1. [We wish to borrow a Loan on the following terms:] / [We wish [name of
Issuing Bank or Fronting Bank] to issue the [Letter of Credit] as
follows:]
Proposed Utilisation Date: [ ] (or, if that is not a
Business Day, the next Business Day)
Facility to be utilised: [Term Facility A]/[Term Facility B]/[Term
Facility C]/[Revolving Credit Facility]
Currency of [Loan]/[Letter of Credit]:[ ]
Amount: [ ] or, if less, the [Available
Facility] [amount in such currency which
will reduce the Available Facility to
zero]
Interest Period: [ ]
[Expiry Date:] [ ]
[Issuing Bank/Fronting Bank:] [ ]
2. We confirm on our own behalf and on behalf of any other Obligor that each
condition specified in Clause 4.2 (Further Conditions Precedent) of the
Facilities Agreement is satisfied on the date of this Utilisation
Request. We confirm that the [Loan]/[Letter of Credit] [is]/[are] to be
applied for the following purpose: [purpose permitted pursuant to Clause
3 (Purpose) of the Facilities Agreement to be specified].
3. [The proceeds of this Loan should be credited to [account].] / [The
Letter of Credit should be issued in favour of [name of beneficiary] in
the form attached and delivered to the recipient at [address of
beneficiary.]
4. This Utilisation Request is irrevocable.
137
Yours faithfully
.....................................
authorised signatory for
[name of relevant Borrower]
Confirmed by:
.....................................
authorised signatory for
SGL CARBON AKTIENGESELLSCHAFT
138
PART II
SELECTION NOTICE APPLICABLE TO A TERM LOAN FACILITY
From: [name of relevant Borrower]
To: Deutsche Bank Luxembourg S.A.
Dated:
Dear Sirs
SGL CARBON AKTIENGESELLSCHAFT - e 495,000,000 FACILITIES AGREEMENT
DATED [ ] 2002 (THE "FACILITIES AGREEMENT")
1. We refer to the following Term Facility A Loan[s] in Euros with an
Interest Period ending on [ ].
2. [We request that the above Term Facility A Loan[s] be divided into [
] Term Facility A Loans with the following amounts and Interest Periods:]
or
[We request that the next Interest Period for the above Term Facility A
Loan[s] is [ ]].
3. We confirm on our own behalf and on behalf of any other Obligor that each
condition specified in Clause 4.2 (Further Conditions Precedent) of the
Facilities Agreement is satisfied on the date of this Selection Notice.
We confirm that the Term Facility A Loan[s] [is]/[are] to be applied for
the following purpose: [purpose permitted pursuant to Clause 3 (Purpose)
of the Facilities Agreement to be specified].
4. This Selection Notice is irrevocable.
Yours faithfully
.....................................
authorised signatory for
[name of relevant Borrower]
Confirmed by:
.....................................
authorised signatory for
SGL CARBON AKTIENGESELLSCHAFT
139
SCHEDULE 4
MANDATORY COST FORMULA
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the
Financial Services Authority (or any other authority which replaces all
or any of its functions) or (b) the requirements of the European Central
Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, a
rate (the "ADDITIONAL COST RATE") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Facility Agent as a weighted average of the Lenders' Additional Cost
Rates (weighted in proportion to the percentage participation of each
Lender in the relevant Loan) and will be expressed as a percentage rate
per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in
a Participating Member State will be the percentage notified by that
Lender to the Facility Agent as the cost of complying with the minimum
reserve requirements of the European Central Bank.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Facility Agent as follows:
Ex0.01
------
300 per cent. per annum.
Where:
E is the rate of charge payable by that Lender to the Financial
Services Authority pursuant to the Fees Regulations (but, for this
purpose, ignoring any minimum fee required pursuant to the Fees
Regulations) and expressed in pounds per {pound-sterling}1,000,000
of the Fee Base of that Lender.
5. For the purposes of this Schedule:
(a) "FEES REGULATIONS" means the Banking Supervision (Fees)
Regulations 1999 or such other law or regulation as may be in
force from time to time in respect of the payment of fees for
banking supervision; and
(b) "FEE BASE" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
6. Each Lender shall supply any information required by the Facility Agent
for the purpose of calculating its Additional Cost Rate. In particular,
but without limitation, each Lender shall supply the following
information in writing on or prior to the date on which it becomes a
Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) any other information that the Facility Agent may reasonably
require for such purpose.
140
Each Lender shall promptly notify the Facility Agent in writing of any
change to the information provided by it pursuant to this paragraph.
7. The percentages or rates of charge of each Lender for the purpose of E
above shall be determined by the Facility Agent based upon the
information supplied to it pursuant to paragraph 6 above and on the
assumption that, unless a Lender notifies the Facility Agent to the
contrary, each Lender's obligations in relation to cash ratio deposits,
Special Deposits and the Fees Regulations are the same as those of a
typical bank from its jurisdiction of incorporation with a Facility
Office in the same jurisdiction as its Facility Office.
8. The Facility Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the
information provided by any Lender pursuant to paragraphs 3 and 6 above
is true and correct in all respects.
9. The Facility Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the
Additional Cost Rate for each Lender based on the information provided by
each Lender pursuant to paragraphs 3 and 6 above.
10. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
11. The Facility Agent may from time to time, after consultation with the
Company and the Lenders, determine and notify to all Parties any
amendments which are required to be made to this Schedule in order to
comply with any change in law, regulation or any requirements from time
to time imposed by the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or
any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all Parties.
141
SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
To: Deutsche Luxembourg S.A. as Facility Agent
From: [The Existing Lender] (the "EXISTING LENDER") and [The New Lender] (the
"NEW LENDER")
Dated:
SGL CARBON AKTIENGESELLSCHAFT - e 495,000,000 FACILITIES AGREEMENT DATED [
] 2002 (THE "FACILITIES AGREEMENT") AND SALE AND PURCHASE AGREEMENT DATED [
] (THE "SALE AGREEMENT")
1. We refer to Clause 25.5 (Procedure for Transfer):
The Existing Lender and the New Lender agree to the Existing Lender and
the New Lender assignning and transferring all or part of the Existing
Lender's Commitment referred to in the Schedule and all its related
rights and obligations under the Facility Agreement and the Security
Trust Agreement in accordance with Clause 25.5 (Procedure for Transfer).
The New Lender agrees to the terms and conditions of the Sale Agreement
and the Terms and Conditions attached hereto.
The proposed Transfer Date is [ ].
The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 33.2 (Addresses) are
set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in Clause 25.2(b).
3. This Transfer Certificate is governed by German law.
By:
_______________________
_______________________
142
THE SCHEDULE
TRANSFER AND ASSUMPTION AGREEMENT
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERED
EXISTING LENDER'S COMMITMENT TRANSFER AMOUNT
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments]
Date: Date:
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Facility Agent and the Transfer
Date is confirmed as [ ].
Dresdner Bank Luxembourg S.A. By:
143
TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "TRANSFER CERTIFICATE") to which they are
annexed.
1. INTERPRETATION
In these Terms and Conditions words and expressions shall (unless
otherwise expressly defined herein) bear the meaning given to them in the
Transfer Certificate and the Facilities Agreement.
2. TRANSFER
The Existing Lender requests the New Lender to accept and procure the
assignment and transfer of all or a part (as applicable) of such
participation of the Existing Lender under the Facilities Agreement as is
set out in the relevant part of the Transfer Certificate under the
heading "Schedule" (the "PURCHASED ASSETS") by counter-signing and
delivering the Transfer Certificate to the Facility Agent at its address
for the service of notice specified in the Facilities Agreement. On the
Transfer Date the New Lender shall pay to the Existing Lender the
settlement amount as specified in the pricing letter between the Existing
Lender and the New Lender dated the date of the Transfer Certificate
(adjusted, if applicable, in accordance with the Sale Agreement) and
completion of the transfer will take place.
3. EFFECTIVENESS OF TRANSFER
The New Lender hereby requests the Facility Agent to accept the Transfer
Certificate as being delivered to the Facility Agent pursuant to and for
the purposes of the Facilities Agreement so as to take effect in
accordance with the terms of the Facilities Agreement on the Transfer
Date or on such later date as may be determined in accordance with the
terms thereof.
4. NEW LENDER'S UNDERTAKING
The New Lender hereby undertakes with the Facility Agent and the Existing
Lender and each of the other parties to the Finance Documents that it
will perform in accordance with its terms all those obligations which by
the terms thereof will be assumed by it after delivery of the Transfer
Certificate to the Facility Agent and satisfaction of the conditions (if
any) subject to which the Transfer Certificate is to take effect.
5. PAYMENTS
5.1 PLACE
All payments by either party to the other under the Transfer Certificate
shall be made to the account of that other party specified in the Sale
Agreement (the "RECEIVING ACCOUNT"). Each party may designate a
different account as its Receiving Account for payment by giving the
other not less than five (5) Business Days notice before the due date for
payment.
144
5.2 FUNDS
Payments under the Transfer Certificate shall be made in the currency in
which the amount is denominated for value on the due date at such times
and in such funds as are customary at the time for settlement of
transactions in that currency.
6. THE FACILITY AGENT
The Facility Agent shall not be required to concern itself with the Sale
Agreement and may rely on the Transfer Certificate without taking account
of the provisions of such agreement.
7. ASSIGNMENT OF RIGHTS
The Transfer Certificate shall be binding upon and enure to the benefit
of each party and its successors and permitted assigns PROVIDED THAT
neither party may assign and transfer its rights thereunder without the
prior written consent of the other party.
8. GOVERNING LAW AND JURISDICTION
The Transfer Certificate (including, without limitation, these Terms and
Conditions) shall be governed by and construed in accordance with the
laws of the Federal Republic of Germany, and the parties submit to the
non-exclusive jurisdiction of the German courts.
Each party irrevocably appoints the person described as process agent (if
any) specified in the Sale Agreement to receive on its behalf service of
any action, suit or other proceedings in connection with the Transfer
Certificate. If any person appointed as process agent ceases to act for
any reason the appointing party shall notify the other party and shall
promptly appoint another person incorporated within the Federal Republic
of Germany to act as its process agent.
145
SCHEDULE 6
FORM OF ACCESSION LETTER
PART I
FORM OF BORROWER ACCESSION LETTER
To: Deutsche Bank Luxembourg S.A. as Facility Agent
From: [Material Subsidiary] and SGL Carbon Aktiengesellschaft
Dated:
Dear Sirs
SGL CARBON AKTIENGESELLSCHAFT - e 495,000,000 FACILITIES AGREEMENT
DATED [ ] (THE "FACILITIES AGREEMENT")
1. [Material Subsidiary] agrees to become an Additional Borrower and an
Additional Guarantor and to be bound by the terms of the Facilities
Agreement as an Additional Borrower and an Additional Guarantor pursuant
to Clause 26 (Changes to the Obligors) of the Facilities Agreement and
the terms of the Security Trust Agreement. [Material Subsidiary] is a
company duly incorporated under the laws of [name of relevant
jurisdiction].
2. [Material Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
3. [Material Subsidiary] agrees to provide and, to the extent permitted by
law, causes any Subsidiary to provide, such Security for all or any part
of its obligations under the Finance Documents as the Facility Agent
shall reasonably require.
4. This letter is governed by German law.
[Company] [Material Subsidiary]
146
PART II
FORM OF GUARANTOR ACCESSION LETTER
To: Deutsche Bank Luxembourg S.A. as Facility Agent
From: [Subsidiary] and SGL Carbon Aktiengesellschaft
Dated:
Dear Sirs
SGL CARBON AKTIENGESELLSCHAFT - e 495,000,000 FACILITIES AGREEMENT
DATED [ ] 2002 (THE "FACILITIES AGREEMENT")
1. [Subsidiary] agrees to become an Additional Guarantor and to be bound by
the terms of the Facilities Agreement as an Additional Guarantor pursuant
to Clause 26 (Changes to the Obligors) of the Facilities Agreement and
the terms of the Security Trust Agreement. [Subsidiary] is a company
duly incorporated under the laws of [name of relevant jurisdiction].
2. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
3. [Subsidiary] agrees to provide and, to the extent permitted by law,
causes any Subsidiary to provide, such Security for all or any part of
its obligations under the Finance Documents as the Facility Agent shall
reasonably require.
4. This letter is governed by German law.
For and on behalf of
SGL CARBON AKTIENGESELLSCHAFT [Subsidiary]
147
SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
To: Deutsche Bank Luxembourg S.A. as Facility Agent
From: SGL Carbon Aktiengesellschaft
Dated:
Dear Sirs
SGL CARBON AKTIENGESELLSCHAFT - e 495,000,000 FACILITIES AGREEMENT
DATED [ ] 2002 (THE "FACILITIES AGREEMENT")
1. We refer to the Facilities Agreement. This is a Compliance Certificate.
2. We confirm that: [Insert details of covenants to be certified, including
calculations and explanations]
3. On the basis of above, we confirm that:
(a) the Margin in respect of Term Facility A Loans after your receipt
of this Compliance Certificate will be [ ] per cent. per
annum; and
(b) the Margin in respect of Revolving Credit Facility Loans after
your receipt of this Compliance Certificate will be [
] per cent. per annum.
3. The following entities are Material Subsidiaries (as this term is defined
in the Facilities Agreement): [identify relevant entities]
4. We confirm that no Default is continuing.
Signed: ............... ...............
Director Director
of of
SGL CARBON AKTIENGESELLSCHAFT SGL CARBON AKTIENGESELLSCHAFT
[insert applicable certification language]
......................
for and on behalf of
[name of auditors of the Company]
148
SCHEDULE 8
EXISTING SECURITY
--------------------------------------------------------------------------------
Name of Obligor Security Total Principal Amount of
Indebtedness Secured
--------------------------------------------------------------------------------
Details of any existing security, which will remain in place after the Closing
Date, to be inserted.
NOT APPLICABLE
149
SCHEDULE 9
LMA FORM OF CONFIDENTIALITY UNDERTAKING
LMA CONFIDENTIALITY LETTER (SELLER)
[LETTERHEAD OF SELLER/SELLER'S AGENT/BROKER]
To:
[insert name of Potential
Buyer/Buyer's Agent/broker]
RE: SGL CARBON AKTIENGESELLSCHAFT - e 495,000,000 FACILITIES AGREEMENT DATED
[ ] (THE "FACILITIES AGREEMENT")
BORROWER: SGL CARBON AKTIENGESELLSCHAFT
DATE:
AMOUNT: e 495,000,000
AGENT:
Dear Sirs
We understand that you are considering [acquiring] delete if addressee is acting
as broker or Agent [1] /[arranging the acquisition of] delete if addressee is
acting as principal [2] an interest in the Facilities Agreement (the
"ACQUISITION"). In consideration of us agreeing to make available to you certain
information, by your signature of a copy of this letter you agree as follows:
1. Confidentiality Undertaking You undertake (a) to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care that
would apply to your own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose, (c) to use all
reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed under paragraph 2[(c)/(d)]
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to it, and (d) not to make enquiries of any
member of the Group or any of their officers, directors, employees or
professional advisers relating directly or indirectly to the Acquisition.
2. Permitted Disclosure We agree that you may disclose Confidential
Information:
1 delete if addressee is acting as broker or Agent
2 delete if addressee is acting as principal
150
(a) to members of the Buyer Group and their officers, directors,
employees and professional advisers to the extent necessary for
the Permitted Purpose and to any auditors of members of the Buyer
Group;
(a) [subject to the requirements of the Facilities Agreement, in
accordance with the Permitted Purpose so long as any prospective
buyer has delivered a letter to you in equivalent form to this
letter;]
[(b/c] subject to the requirements of the Facilities Agreement, to any
person to (or through) whom you assign and transfer (or may
potentially assign and transfer) all or any of the rights,
benefits and obligations which you may acquire under the
Facilities Agreement or with (or through) whom you enter into (or
may potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made by
reference to, the Facilities Agreement or the Borrower or any
member of the Group so long as that person has delivered a letter
to you in equivalent form to this letter; and
[c/d] (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental, supervisory
or regulatory body, (ii) where required by the rules of any stock
exchange on which the shares or other securities of any member of
the Buyer Group are listed or (iii) where required by the laws or
regulations of any country with jurisdiction over the affairs of
any member of the Buyer Group.
3. Notification of Required or Unauthorised Disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2[(c)/(d)] or upon becoming aware that
Confidential Information has been disclosed in breach of this letter.
4. Return of Copies If we so request in writing, you shall return all
Confidential Information supplied to you by us and destroy or permanently
erase all copies of Confidential Information made by you and use all
reasonable endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such Confidential
Information and any copies made by them, in each case save to the extent
that you or the recipients are required to retain any such Confidential
Information by any applicable law, rule or regulation or by any competent
judicial, governmental, supervisory or regulatory body or in accordance
with internal policy, or where the Confidential Information has been
disclosed under paragraph 2[(c)/(d)] above.
5. Continuing Obligations The obligations in this letter are continuing
and, in particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous sentence,
the obligations in this letter shall cease (a) if you become a party to
or otherwise acquire (by assignment or sub-participation) an interest,
direct or indirect, in the Facilities Agreement or (b) twelve (12) months
after you have returned all Confidential Information supplied to you by
us and destroyed or permanently erased all copies of Confidential
Information made by you (other than any such Confidential Information or
copies which have been disclosed under paragraph 2 above (other than sub-
paragraph 2(a)) or which, pursuant to paragraph 4 above, are not required
to be returned or destroyed)).
6. No Representation; Consequences of Breach etc You acknowledge and agree
that:
151
(a) neither we, [nor our principal] nor any member of the Group nor
any of our or their respective officers, employees or advisers
(each a "RELEVANT PERSON") (i) make any representation or
warranty, express or implied, as to, or assume any responsibility
for, the accuracy, reliability or completeness of any of the
Confidential Information or any other information supplied by us
or the assumptions on which it is based or (ii) shall be under any
obligation to update or correct any inaccuracy in the Confidential
Information or any other information supplied by us or be
otherwise liable to you or any other person in respect to the
Confidential Information or any such information; and
(a) we [or our principal] or members of the Group may be irreparably
harmed by the breach of the terms hereof and damages may not be an
adequate remedy; each Relevant Person may be granted an injunction
or specific performance for any threatened or actual breach of the
provisions of this letter by you.
7. No Waiver; Amendments, etc This letter sets out the full extent of your
obligations of confidentiality owed to us in relation to the information
the subject of this letter. No failure or delay in exercising any right,
power or privilege hereunder will operate as a waiver thereof nor will
any single or partial exercise of any right, power or privilege preclude
any further exercise thereof or the exercise of any other right, power or
privileges hereunder. The terms of this letter and your obligations
hereunder may only be amended or modified by written agreement between
us.
8. Inside Information You acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use of
such information may be regulated or prohibited by applicable legislation
relating to insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. Nature of Undertakings The undertakings given by you under this letter
are given to us and (without implying any fiduciary obligations on our
part) are also given for the benefit of [our principal,]4 the Borrower
and each other member of the Group.
10. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by
and construed in accordance with the laws of the Federal Republic of
Germany and the parties submit to the non-exclusive jurisdiction of the
German courts.
11. Definitions In this letter (including the acknowledgement set out below)
terms defined in the Facilities Agreement shall, unless the context
otherwise requires, have the same meaning and:
"BUYER GROUP" means you, each of your holding companies and subsidiaries
and each subsidiary of each of your holding companies;
"CONFIDENTIAL INFORMATION" means any information relating to the
Borrower, the Group, the Facilities Agreement and/or the Acquisition
provided to you by us or any of our affiliates or advisers, in whatever
form, and includes information given orally and any document, electronic
file or any other way of representing or recording information which
contains or is derived or copied from such information but excludes
information that (a) is or becomes public knowledge other than as a
direct or indirect result of any breach of this letter or (b) is known by
you before the date the information is disclosed to you by us or any
152
of our affiliates or advisers or is lawfully obtained by you thereafter,
other than from a source which is connected with the Group and which, in
either case, as far as you are aware, has not been obtained in violation
of, and is not otherwise subject to, any obligation of confidentiality;
"GROUP" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies; and
"PERMITTED PURPOSE" means [subject to the terms of this letter, passing
on information to a prospective buyer for the purpose of] considering and
evaluating whether to enter into the Acquisition.
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
............................
For and on behalf of
[Seller/Seller's Agent/broker]
To: [Seller]
[Seller's Agent/broker]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
.............................
For and on behalf of
[POTENTIAL BUYER/BUYER'S AGENT/BROKER]
153
SCHEDULE 10
TIMETABLES
PART I
LOANS
LOANS IN EURO LOANS IN
DOLLARS
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a X-0 X-0
Utilisation Request) or a Selection Notice Clause 11.1 (Selection of Interest 12.00 noon 12.00 noon
Periods)
Facility Agent notifies the Lenders of the amount and currency of the Loan in X-0 X-0
accordance with Clause 5.4 (Lenders' Participation) 05.00 p.m. 05.00 p.m.
Facility Agent receives a notification from a Lender under Clause 6.2 X-0 X-0
(Unavailability of a Currency) 11.00 a.m. 11.00 a.m.
Facility Agent gives notice to the relevant Borrower in accordance with X-0 X-0
Clause 6.2 (Unavailability of a Currency) 11.00 a.m. 11.00 a.m.
Facility Agent calculates amount of the Loan in Dollars in accordance with X-0 X-0
Clause 6.3 (Change of Currency) 12.00 noon 12.00 noon
LIBOR or EURIBOR is fixed Quotation Day as of 11:00 a.m.
London time in respect Quotation
of LIBOR and as of Day as of
11:00 am (Brussels time) 11:00 a.m.
in respect of EURIB London
time
D = first day of relevant Interest Period.
D - X = X Business Days prior to D.
1
PART II
LETTERS OF CREDIT
LETTERS
OF
CREDIT
Delivery of a duly completed Utilisation Request
(Clause 5.1 (Delivery of a Utilisation Request))
U-5
12.00 noon.
Facility Agent notifies the Lenders and the
Issuing Banks of the Letter of Credit in accordance
with Clause 5.4 (Lenders'
Participation). U-3
12.00 noon
U = date of utilisation.
U - X = X Business Days prior to U.
2
SCHEDULE 11
FORM OF SECURITY TRUST AGREEMENT
3
SCHEDULE 12
APPROVED ADDITIONAL BORROWERS AND THEIR ALLOCATIONS
TERM FACILITY A
NAME OF APPROVED ADDITIONAL BORROWER AMOUNT OF SUCH APPROVED ADDITIONAL BORROWER'S ALLOCATION
---------------------------------------------------------------------------------------------------------
SGL CARBON BETEILIGUNG GMBH, WIESBADEN, GERMANY e 20,000,000
---------------------------------------------------------------------------------------------------------
SGL ACOTEC GMBH, SIEHRSHAHN, GERMANY e 15,000,000
---------------------------------------------------------------------------------------------------------
SGL TECHNOLOGIES GMBH, MEITINGEN, GERMANY e 25,000,000
---------------------------------------------------------------------------------------------------------
SGL BRAKES GMBH, MEITINGEN, GERMANY e 20,000,000
---------------------------------------------------------------------------------------------------------
SGL CARBON S.P.A., MILAN, ITALY e 20,000,000
---------------------------------------------------------------------------------------------------------
SGL CARBON S.A., LA CORUNA, SPAIN e 5,000,000
---------------------------------------------------------------------------------------------------------
SGL CARBON LLC, CHARLOTTE, NORTH CAROLINA, USA e 70,000,000
---------------------------------------------------------------------------------------------------------
4
SCHEDULE 13
CURRENT MATERIAL SUBSIDIARIES
NAME OF MATERIAL SUBSIDIARY JURISDICTION OF INCORPORATION AND REGISTRATION
NUMBER (OR EQUIVALENT, IF ANY)
---------------------------------------------------------------------------------------------------------
SGL CARBON GMBH, MEITINGEN GERMANY
---------------------------------------------------------------------------------------------------------
SGL CARBON BETEILIGUNG GMBH, WIESBADEN GERMANY
---------------------------------------------------------------------------------------------------------
SGL PANTRAC, BERLIN GERMANY
---------------------------------------------------------------------------------------------------------
SGL ACOTEC GMBH, SIEHRSHAHN GERMANY
---------------------------------------------------------------------------------------------------------
KCH BETEILIGUNGSS GMBH, SIEHRSHAHN GERMANY
---------------------------------------------------------------------------------------------------------
SGL TECHNOLOGIES GMBH, MEITINGEN GERMANY
---------------------------------------------------------------------------------------------------------
SGL BRAKES GMBH, MEITINGEN GERMANY
---------------------------------------------------------------------------------------------------------
SGL CARBON GMBH, SEEG AUSTRIA
---------------------------------------------------------------------------------------------------------
SGL CARBON GMBH & CO, SEEG AUSTRIA
---------------------------------------------------------------------------------------------------------
SGL CARBON LT., ALCESTER ENGLAND
---------------------------------------------------------------------------------------------------------
RK CARBON INTERNATIONAL LTD., WILMSLOW ENGLAND
---------------------------------------------------------------------------------------------------------
RK TECHNOLOGIES INTERNATIONAL LTD., WILMSLOW ENGLAND
---------------------------------------------------------------------------------------------------------
SGL TECHNIC LTD., XXXX OF ORD SCOTLAND
---------------------------------------------------------------------------------------------------------
SGL CARBON S.A., CHEDDE FRANCE
---------------------------------------------------------------------------------------------------------
SGL ALCOTEC S.A.R.L., HOUDAIN FRANCE
---------------------------------------------------------------------------------------------------------
SGL TECHNIC S.A., GRENOBLE FRANCE
---------------------------------------------------------------------------------------------------------
SGL CARBON S.P.A., MILAN ITALY
---------------------------------------------------------------------------------------------------------
RADION FINANZIARIA S.P.A., MILAN ITALY
---------------------------------------------------------------------------------------------------------
SGL CARBON S.A., LA CORUNA SPAIN
---------------------------------------------------------------------------------------------------------
SGL CARBON S.A., SACZ POLAND
---------------------------------------------------------------------------------------------------------
ZEW S.A., RACIBORZ POLAND
---------------------------------------------------------------------------------------------------------
SGL CARBON LLC, CHARLOTTE, NORTH CAROLINA NORTH CAROLINA, USA
---------------------------------------------------------------------------------------------------------
5
SGL TECHNIC, INC., VALENCIA, [ ] [ ], USA
---------------------------------------------------------------------------------------------------------
SGL HITCO ACQUISITION CORP., CHARLOTTE,
NORTH CAROLINA [ ], USA
---------------------------------------------------------------------------------------------------------
HITCO CARBON COMPOSITES, INC., GARDENA,
[ ] [ ], USA
---------------------------------------------------------------------------------------------------------
SGL ACOTEC, INC., STONGSVILLE, [ ] [ ], USA
---------------------------------------------------------------------------------------------------------
SGL CANADA, INC., LACHUTE CANADA
---------------------------------------------------------------------------------------------------------
6
SCHEDULE 14
FORM OF THE LETTER OF CREDIT
[Letterhead]
[Date]
BANKBURGSCHAFT NR. [ ]
SACHE COMP/E - 1/36.490 - GRAPHITELEKTRODEN
Wir, [ ], bestatigen Ihnen hiermit, dass wir fur die Erfullung des
Teilbetrages von
EUR [ ]
(IN WORTEN: EURO [ ] 00/100)
der folgenden Verbindlichkeiten der SGL CARBON AG, Rheingaustrabe 182, D-
65203 Wiesbaden, gegenuber der Kommission der Europaischen Gemeinschaften
die Burgschaft ubernehmen:
{circle} Geldbube in Hohe von 80,2 Mio. EUR, die der SGL CARBON AG durch die
Entscheidung der Kommission der Europaischen Gemeinschaften vom 18.
Juli 2001 in der Sache COMP/E-1/36.490 auferlegt xxxxxx ist.
{circle} Die fur diesen Betrag vom 24. Oktober 2001 bis zu diesem Zeitpunkt
der tatsachlichen Zahlung der Geldbube berechneten Zinsen zu dem
Zinssatz, den die Europaische Zentralbank fur
Hauptrefinanzierungsgeschafte im Xxxxx Xxxx 2001 anwendet (d.h.
4,54%, wie im Amtsblatt der Europaischen Gemeinschaften Nr. C 188/1
vom 4. Juli 2001 bekanntgegeben, erhoht um eineinhalb Prozentpunkte,
insgesamt 6,04 %).
Dieses Burgschaftsversprechen kann nur mit Zustimmung der Kommission der
Europaischen Gemeinschaften widerrufen werden.
Wir verzichten auf die Einrede der Vorausklage.
Die genannte Burgschaft wird fallig auf Ihre erste Anforderung durch mit
Einschreibebrief ubersandte, beglaubigte Abschrift des Urteils des Gerichts
erster Instanz bzw. des Gerichtshofs der Europaischen Gemeinschaften in der
Sache COMP/E-1/36.490.
Die Burgschaft erlischt, abgesehen von der Erfullung der Anspruche,
durch Ruckgabe dieser Urkunde an uns.
Ausschlieblicher Gerichtsstand fur diese Burgschaft ist der
Gerichtshof / das Gericht erster Instanz der Europaischen Gemeinschaft in
Luxemburg.
[Bank/s]
[Signatures]
7
SCHEDULE 15
EXISTING COMPETITION LAW PROCEEDINGS AND ANTI-TRUST LAWSUITS
ALL PENDING ANTITRUST
PROCEEDINGS OF SGL GROUP:
I. PLAINTIFF /INVESTIGATING CAUSE OF
AUTHORITY DEFENDANT COURT / FILING ACTION / STATUS
NUMBER PLAINTIFF'S
CLAIMS
1. EU Commission SGL AG EuG/Az.: T-239/01 Graphite Fine imposed on 18.07.01;
electrodes Appeal at European Court
2. EU Commission SGL AG Sache COMP/E- Isostatic Fines imposed by 17 December 2002
1/37.667 and extruded
speciality
products
3. EU Commission SGL Carbon Sache COMP/E- Electrical Request for Information
Group 1/38.359 a.
mechanical
carbon a.
graphite
products
4. Korean Fair Trade Commission SGL AG Case Graphite Interim Appeal denied; Appeal filed
No.:2002Shinsam058 electrodes with Court xx 00-00-00
5
II. ALL PENDING ANTITRUST
RELATED CIVIL LAW SUITS
CONCERNING SGL GROUP:
CAUS OF
PLAINTIFF DEFENDANT COURT / FILING ACTION / STATUS
NUMBER PLAINTIFF'S
CLAIMS
1. Bethlehem Steel Corporation SGL AG/SGL D.C. of civil action pending, pretrial discovery
U.S. and Pennsylvania Case for damages
other Xx. 00 XX 0000 (XX)
2. Ferromin Internat. trade SGL AG/SGL D.C. of civil action dismissed for lack of standing and lack of subject
Corp. and others U.S. and Pennsylvania Case for damages matter jurisdiction, decision of DC on appeal
other Xx. 00 XX 000 (XX)
3. Broken Hill Proprietary Co. SGL AG/SGL D.C. of civil action dismissed for lack of standing and lack of subject
Ltd (Australia) and others U.S. and Pennsylvania Case for damages matter jurisdiction, decision of DC on appeal
other Xx. 00 XX 0000 (XX)
4. Saudi Iron and Steel Company SGL AG/SGL D.C. of civil action dismissed subject to reinstatement upon resolution
U.S. and Pennsylvania Case for damages of me Ferromin and BHP appeals
other Xx. 00 XX 0000 (XX)
5.Arbed S.A. SGL AG/SGL D.C. of civil action stayed
U.S. and Pennsylvania Case for damages
other Xx. 00 XX 000 (XX)
6.Industrial Graphite Antitrust SGL AG/SGL D.C. of Class action pending, pretrial discovery
litigation U.S. and Pennsylvania Case (Iso)
other No. 00Master
File No. 00 CV
1857
(for all iso)
7. Northwest Aluminium/Company/ SGL AG/SGL District Court of civil action Service of Complaint
Goldendale Aluminium Company U.S. and O region for damages
other (GE)
D.C: of Pennsylvania = United States
District Court for
Iso = Isostatic graphite GE = SGL AG = SGL SGL U.S. = the Eastern District of Pennsylvania
Graphite Carbon AG SGL Carbon
electrodes LLC (former
Corp.)
8
SCHEDULE 16
EXISTING INTRA-GROUP LOANS
LENDER BORROWER KIND OF LOAN CURR. LIMIT
-----------------------------------------------------------------------------------------------------------------
KCH BETEILIGUNGS GMBH SGL ACOTEC Inc., USA IC loans gewahrt kurzfristig USD 5.501.435
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC GmbH, Siershahn IC loans gewahrt kurzfristig EUR 5.177.998
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC GMBH, SIERSHAHN (HAW)SGL CARBON AG IC balances daily due EUR 1.677.988
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC GMBH MEITINGEN SGL Composites SA, France IC balances daily due EUR 81.785
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC GMBH, SIERSHAHN SGL ACOTEC China Ltd., Wuhan IC loans gewahrt kurzfristig EUR 50.000
-----------------------------------------------------------------------------------------------------------------
KCH Beteiligungs GmbH IC loans gewahrt kurzfristig EUR 14.465.272
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC LTD. SANDBACH SGL CARBON AG IC loans gewahrt kurzfristig GBP 360.497
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC S.A.R.L., LA COMTE SGL ACOTEC GmbH, Siershahn IC balances daily due EUR 400.000
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC SPA, ITALY SGL CARBON SpA, Italy IC balances daily due EUR 323.864
-----------------------------------------------------------------------------------------------------------------
SGL CARBON AG SGL CARBON Beteiligung GmbH IC balances daily due EUR 241.593.289
-----------------------------------------------------------------------------------------------------------------
SGL TECHNOLOGIES GmbH IC balances daily due EUR 57.573.258
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC GmbH Meitingen IC balances daily due EUR 13.730.070
-----------------------------------------------------------------------------------------------------------------
SGL PanTrac GmbH, Berlin IC balances daily due EUR 924.838
-----------------------------------------------------------------------------------------------------------------
SGL TECHNIC Ltd., UK IC loans gewahrt kurzfristig GBP 31.037.906
-----------------------------------------------------------------------------------------------------------------
SGL CARBON Asia-Pacific Sdn. Bhd.IC loans gewahrt kurzfristig USD 50.000
-----------------------------------------------------------------------------------------------------------------
SGL CARBON LLC., USA IC balances daily due USD 11.325.132
-----------------------------------------------------------------------------------------------------------------
SGL CARBON LLC., USA IC loans gewahrt kurzfristig USD 12.250.000
-----------------------------------------------------------------------------------------------------------------
SGL CARBON LLC., USA IC loans gewahrt langfristig USD 56.432.248
-----------------------------------------------------------------------------------------------------------------
SGL CARBON LLC., USA IC loans gewahrt langfristig USD 63.225.435
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC Ltda., Brazil IC loans gewahrt kurzfristig USD 1.800.000
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC GmbH, Siershahn IC balances daily due EUR 271.580
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC China Ltd., Wuhan IC loans gewahrt kurzfristig USD 3.600.000
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC Singapore Pte. Ltd. IC loans gewahrt kurzfristig SGD 2.007.332
-----------------------------------------------------------------------------------------------------------------
SGL Brakes GmbH IC balances daily due EUR 6.168.515
-----------------------------------------------------------------------------------------------------------------
ZEW, Ratibor IC loans gewahrt kurzfristig PLN 3.590.000
-----------------------------------------------------------------------------------------------------------------
LENDER BORROWER KIND OF LOAN CURR. LIMIT
-----------------------------------------------------------------------------------------------------------------
SGL CARBON GMBH & CO., AUSTRIA SGL CARBON AG IC balances daily due EUR 3.652.423
-----------------------------------------------------------------------------------------------------------------
SGL CARBON GMBH SGL CARBON AG IC balances daily due EUR 63.404.714
-----------------------------------------------------------------------------------------------------------------
SGL CARBON SA, Belgium IC loans gewahrt kurzfristig EUR 600.000
-----------------------------------------------------------------------------------------------------------------
SGL CARBON SA, Belgium IC loans gewahrt kurzfristig EUR 150.000
-----------------------------------------------------------------------------------------------------------------
SGL CARBON SA, Belgium IC loans gewahrt kurzfristig EUR 250.000
-----------------------------------------------------------------------------------------------------------------
SGL CARBON SA, FRANCE SGL CARBON AG IC balances daily due EUR 12.724.059
-----------------------------------------------------------------------------------------------------------------
SGL TECHNIC S.A., France IC balances daily due EUR 2.847.398
-----------------------------------------------------------------------------------------------------------------
SGL CARBON SA, SPAIN SGL CARBON AG IC balances daily due EUR 25.074.695
-----------------------------------------------------------------------------------------------------------------
SGL CARBON SPA, ITALY Radion Finanziaria SpA, Italy IC balances daily due EUR 3.442.010
-----------------------------------------------------------------------------------------------------------------
SGL CARBON AG IC balances daily due EUR 2.046.250
-----------------------------------------------------------------------------------------------------------------
SGL INFORMATION SERVICES GMBH SGL CARBON AG IC balances daily due EUR 1.766.454
-----------------------------------------------------------------------------------------------------------------
XXXXX CANADA INC., KITCHENER SGL CARBON Inc. Canada IC loans gewahrt kurzfristig CAD 3.000.000
-----------------------------------------------------------------------------------------------------------------
XXXXXXX GMBH, RUTESHEIM SGL ACOTEC GmbH, Siershahn IC balances daily due EUR 1.010.927
-----------------------------------------------------------------------------------------------------------------
XXXX GMBH, PASCHING SGL ACOTEC GmbH, Siershahn IC loans gewahrt kurzfristig EUR 2.398.203
-----------------------------------------------------------------------------------------------------------------
SGL ACOTEC GmbH, Siershahn IC loans gewahrt kurzfristig EUR 125.000
-----------------------------------------------------------------------------------------------------------------
2
SCHEDULE 17
MANDATORILY DISCHARGED INDEBTEDNESS
BANK ART WaHR. SALDO VERTRAG VOM
--------------------------
SGL ACOTEC GMBH, SIERSHAHN
--------------------------
Kreissparkasse Hildesheim langfristige Aufnahme EUR -110.695
Kreissparkasse Hildesheim langfristige Aufnahme EUR -63.887
-------------------------- TOTAL: -174.582
SGL CARBON SA LA CORUNA
--------------------------
Banco Pastor, La Coruna langfristige Aufnahme EUR -1.760.461
Banco Bilbao-Vizcaya, Madrid kurzfristige Aufnahme EUR -7.000.000
Caja de Ahorros xx Xxxxxxx, Madrid kurzfristige Aufnahme EUR -7.000.000
Banco Popular, La Coruna kurzfristige Aufnahme EUR -2.500.000
Banco Xxxxxxx, La Coruna kurzfristige Aufnahme EUR -5.000.000
TOTAL: -23.260.461
--------------------------
SGL CARBON SPA MAILAND
--------------------------
Ministerio ICA langfristige Aufnahme EUR -898.859
Credito Artigiano, Mailand kurzfristige Aufnahme EUR -5.000.000
BNL, Mailand kurzfristige Aufnahme EUR -17.500.000
TOTAL: -23.398.859
--------------------------
SGL TECHNOLOGIES, MEITINGEN
--------------------------
IKB Bank AG, Dusseldorf langfristige Aufnahme EUR -6.250.000 03.04.2001
IKB Bank AG, Dusseldorf langfristige Aufnahme EUR -7.500.000 03.04.2001
TOTAL: -13.750.000
--------------------------
--------------------------
--------------------------
ZEW, RATIBOR
--------------------------
ING Bank Xxxxxx kurzfristige Aufnahme EUR -1.318.001
--------------------------
SGL TECHNIC UK, XXXX OF ORD
--------------------------
DZ Bank Frankfurt langfristige Aufnahme GBP -4.500.000
Bank of America, London Kontokorrent GBP -500.000
TOTAL: GBP -5.000.000
EUR -7.814.942
--------------------------
SGL CARBON AG
--------------------------
Bay. Landesbank, Munchen langfristige Aufnahme EUR -10.000.000 18.02.2002
IKB Bank, Dusseldorf langfristige Aufnahme EUR -3.195.570 05.09.1997
IKB Bank, Dusseldorf langfristige Aufnahme EUR -5.000.000 03.04.2001
DZ Bank London KonsortialKredit EUR -71.580.863 18.04.2000
Bank of America, Frankfurt kurzfristige Aufnahme USD -8.100.000mdl. Zusage
Bay. Landesbank, Munchen kurzfristige Aufnahme EUR -40.000.000 31.01.2002
Bay. Landesbank, Munchen kurzfristige Aufnahme EUR -15.000.000 31.01.2002
Kreissparkasse Augsburg kurzfristige Aufnahme EUR -2.500.000 01.07.2002
Deutsche Bank AG, Augsburg kurzfristige Aufnahme EUR -15.000.000 18.12.2001
Mitteleurop. Handelsbank, Frankfurt kurzfristige Aufnahme EUR -10.000.000 17.04.2002
2
BANK ART WaHR. SALDO VERTRAG VOM
HypoVereinsbank AG, Augsburg Kontokorrentkonto EUR -876.000 21.02.2002
Xxxxxxxxxxx XX, Xxxxxxxx Xxxxxxxxxxxxxxxxx EUR -4.614.000 11.01.2002
Xxxxxxxxxxx XX, Xxxxxxxx Xxxxxxxxxxxxxxxxx USD -2.873.000
Deutsche Bank AG, Augsburg Kontokorrentkonto EUR -8.584.000 18.12.2001
Deutsche Bank AG, Augsburg Kontokorrentkonto USD -690.000
Dresdner Bank AG, Augsburg Kontokorrentkonto EUR -6.769.000 24.10.2002
Nassauische Sparkasse, Wiesbaden Kontokorrentkonto EUR -9.985.495 01.12.2001
XXX-Xxxx XX, Xxxxxxxxx Xxxxxxxxxxxxxxxxx EUR -9.942.574 06.11.2001
TOTAL: -224.710.503
GESAMTKREDITAUFNAHME -297.427.348
2
SCHEDULE 18
FORM OF US OPINION
CONFIDENTIAL
S&S DRAFT
6.11.2002
[S&S U.S. LETTERHEAD]
Dresdner Bank Aktiengesellschaft
Xxxxxx-Xxxxx-Xxxxx 0
X-00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
as Documentation Agent for the
Lenders referred to below
[Date]
PRDOCS01/153400.4
SGL CARBON AKTIENGESELLSCHAFT
SYNDICATED CREDIT AGREEMENT
__________________________________________
Ladies and Gentlemen:
We are acting as United States counsel for SGL CARBON
Aktiengesellschaft (the "Company") in connection with the transactions
contemplated by the [syndicated credit agreement][3], dated as of the date
hereof, among the Company, [insert names of Lenders] (together, the "Lenders")
[and [insert names of any other parties]] (the "Credit Agreement"). Capitalized
terms used herein and not otherwise defined have the meaning set forth in the
Credit Agreement.
In this capacity, we have examined copies of:
(ii) the Credit Agreement;
1 Adjust title of relevant credit document(s) as appropriate
3
(iii) the plea agreement between the United States and the Company,
filed June 16, 1999; the plea agreement between the United States
and Xxxxxx X. Xxxxxxx, filed June 16, 1999; the judgment of the
United States District Court for the Eastern District of
Pennsylvania (the "District Court") dated June 16, 1999; the Order
of the District Court dated July 11, 2001 (the "2001 Court
Order"); the Order of the District Court dated April 11, 2002 (the
"2002 Court Order" and, together with the 2001 Court Order, the
"Court Orders"), in each case in connection with United States v.
SGL Carbon Aktiengesellschaft and Xxxxxx X. Xxxxxxx, Xxxx. No. 99-
244, (E.D. Pa., filed May 4, 1999) (collectively, the "Court
Documents"); and
(iii) such other documents, agreements and instruments as we have deemed
necessary as a basis for the opinions hereinafter expressed.
In such examination, we have assumed the genuineness of all signatures, the
authenticity of all agreements, certificates, documents and instruments
submitted to us as originals and the conformity with the originals of all
agreements, certificates, documents and instruments submitted to us as copies.
The opinions stated herein are limited to the federal law of the
United States of America and we express no opinion as to the effect of the laws
of any other jurisdiction.
Based upon and subject to the foregoing, and having regard for such
legal considerations as we deem relevant, we are of the opinion that:
(1) In a proceeding under the United States Bankruptcy Code, 11 U.S.C.
{section} 101 et seq (the "Bankruptcy Code"), a claim of the United
States based an the non-payment by the Company of obligations to the
United States government resulting from the Company's (and, insofar as
the Company has agreed to pay fines owed by Xx. Xxxxxxx, from Xx.
Xxxxxxx'x) plea to violating United States antitrust law (as such
obligations are set forth in the Court Documents, the "U.S. Fine") would
not have any priority right to receive payment or distribution from the
assets of the Company's bankruptcy estate.
(2) To the best of our knowledge, the execution and delivery of the Credit
Agreement, the grant by the Company and certain of its subsidiaries in
favor of the Lenders of the pledges, mortgages, charges and assignments
described in [Schedule *] to the Credit Agreement and the consummation of
the transactions contemplated in the Credit Agreement will not conflict
with, or constitute a breach of or default under, the Court Orders.
(3) The Company has not granted any security interests in favor of the United
States to secure payment of the U.S. Fine. The Court Orders do not
entitle the United States to require the Company to grant such security
interests at any time prior to the payment in full of the U.S. Fine.
We note that the 2002 Court Order, which extended the payment
schedule for the U.S. Fine, reserves to the United States the right to move the
District Court for an acceleration of the payment schedule at any time after
January 1, 2004, in the event of a change in the Company's ability to pay all
or an increased amount of the U.S. Fine balance due at the time the U.S.
government makes such a motion.
We note further that this letter does not address any issue
regarding the discharge of a debt arising from a criminal fine under the
Bankruptcy Code following the distribution of assets of a corporate debtor's
bankruptcy estate.
Our opinions are subject to the effect of general principles of
equity, including (without limitation) concepts of materiality, reasonableness,
good faith and fair dealing.
4
We are furnishing this letter to you, as Documentation Agent for the
Lenders, solely for the benefit of the Lenders in connection with the Credit
Agreement. This letter is not to be used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
5
SIGNATURES
THE COMPANY
SGL CARBON AKTIENGESELLSCHAFT
BY:
ADDRESS: XXXXXXXXXXX. 000
00000 XXXXXXXXX
ATTENTION:
PHONE:
FAX:
THE ORIGINAL BORROWERS
SGL CARBON AKTIENGESELLSCHAFT
BY:
ADDRESS: XXXXXXXXXXX. 000
00000 XXXXXXXXX
ATTENTION:
PHONE:
FAX:
SGL CARBON BETEILIGUNG GMBH
BY:
ADDRESS: XXXXXXXXXXXXXX 000
00000 XXXXXXXXX
ATTENTION:
PHONE:
FAX:
6
SGL ACOTEC GMBH
BY:
ADDRESS: BERGGARTEN 1
56427 SIERSHAHN
ATTENTION:
PHONE:
FAX:
SGL TECHNOLOGIES GMBH
BY:
ADDRESS: XXXXXX-XXX-XXXXXXX-XXXXXX 00
00000 XXXXXXXXX
ATTENTION:
PHONE:
FAX:
SGL BRAKES GMBH
BY:
ADDRESS: XXXXXX-XXX-XXXXXXX-XXXXXX 00
00000 XXXXXXXXX
ATTENTION:
PHONE:
FAX:
SGL CARBON S.P.A.
BY:
ADDRESS: XXXXXXXX X. XXXXX # 0
X-00000 XXXXXX
XXXXXXXXX:
PHONE:
FAX:
7
SGL CARBON S.A.
BY:
ADDRESS: ZI DE LA GRELA-APDO. 478
E-15080 LA CORUNA
ATTENTION:
PHONE:
FAX:
SGL CARBON LLC
BY:
ADDRESS: X.X.XXX 563960
XXXXXXXXX, XX 00000-0000, XXX
ATTENTION:
PHONE:
FAX:
THE ORIGINAL GUARANTORS
SGL CARBON AKTIENGESELLSCHAFT
BY:
ADDRESS: XXXXXXXXXXX. 000
00000 XXXXXXXXX
ATTENTION:
PHONE:
FAX:
SGL CARBON GMBH
BY:
ADDRESS: XXXXXX-XXX-XXXXXXX-XXXXXX 00
00000 XXXXXXXXX
ATTENTION:
PHONE:
FAX:
8
SGL CARBON BETEILIGUNG GMBH
BY:
ADDRESS: XXXXXXXXXXXXXX 000
00000 XXXXXXXXX
ATTENTION:
PHONE:
FAX:
SGL ACOTEC GMBH
BY:
ADDRESS: BERGGARTEN 1
56427 SIERSHAHN
ATTENTION:
PHONE:
FAX:
KCH BETEILIGUNGS GMBH
BY:
ADDRESS: BERGGARTEN 1
56427 SIERSHAHN
ATTENTION:
PHONE:
FAX:
SGL TECHNOLOGIES GMBH
BY:
ADDRESS: XXXXXX-XXX-XXXXXXX-XXXXXX 00
00000 XXXXXXXXX
ATTENTION:
PHONE:
FAX:
SGL BRAKES GMBH
9
BY:
ADDRESS: XXXXXX-XXX-XXXXXXX-XXXXXX 00
00000 XXXXXXXXX
ATTENTION:
PHONE:
FAX:
SGL CARBON S.P.A.
BY:
ADDRESS: XXXXXXXX X. XXXXX # 0
X-00000 XXXXXX
XXXXXXXXX:
PHONE:
FAX:
SGL CARBON S.A.
BY:
ADDRESS: ZI DE LA GRELA-APDO. 478
E-15080 LA CORUNA
ATTENTION:
PHONE:
FAX:
SGL CARBON LLC
BY:
ADDRESS: X.X.XXX 563960
XXXXXXXXX, XX 00000-0000, XXX
ATTENTION:
PHONE:
FAX:
10
THE MANDATED LEAD ARRANGERS
DRESDNER KLEINWORT XXXXXXXXXXX,
THE INVESTMENT BANKING DIVISION
OF DRESDNER BANK AG
BY:
ADDRESS: XXXXXX-XXXXX-XXXXX 0
00000 XXXXXXXXX XX MAIN
ATTENTION: XXXXXX XXXXXXX
DIRECTOR, CAPITAL MARKETS, DEBT ORIGINATION
XXXXXX.XXXXXXXX@XXXX.XXX
PHONE: x00-00-000-00000
FAX: x00-00-000-0000
DEUTSCHE BANK AG
BY:
ADDRESS: XXXXXXXXXXXX 00
00000 XXXXXXXXX XX MAIN
ATTENTION: XXXX-XXXXX XXXXXXX
GLOBAL CORPORATE FINANCE / SYNDICATED LOANS
PHONE: x00-00-000-00000
FAX: x00-00-000-00000
THE FACILITY AGENT AND SECURITY AGENT
DEUTSCHE BANK LUXEMBOURG S.A.
BY:
ADDRESS: 0, XXXXXXXXX XXXXXX XXXXXXXX
X-0000 XXXXXXXXXX
ATTENTION: INTERNATIONAL LOANS & AGENCY SERVICES
PHONE: x000-00000-000/4778
FAX: x000-00000-000
11
THE DOCUMENTATION AGENT
DRESDNER KLEINWORT XXXXXXXXXXX,
THE INVESTMENT BANKING DIVISION
OF DRESDNER BANK AG
BY:
ADDRESS: XXXXXX-XXXXX-XXXXX 0
00000 XXXXXXXXX XX MAIN
ATTENTION: XXXXXX XXXXXXX
DIRECTOR, CAPITAL MARKETS, DEBT ORIGINATION
XXXXXX.XXXXXXXX@XXXX.XXX
PHONE: x00-00-000-00000
FAX: x00-00-000-0000
THE LENDERS
DEUTSCHE BANK LUXEMBOURG S.A.
BY:
ADDRESS: 0, XXXXXXXXX XXXXXX XXXXXXXX
X-0000 XXXXXXXXXX
ATTENTION: INTERNATIONAL LOANS & AGENCY SERVICES
PHONE: x000-00000-000/4778
FAX: x000-00000-000
DRESDNER BANK AG
BY:
ADDRESS: DRESDNER BANK AUGSBURG
XXXXXXXXXX. 0
00000 XXXXXXXX
XXXXXXXXX: XXXXXX XXXXXXX
XXXXXX.XXXXXXX@XXXXXXXX-XXXX.XXX
PHONE: x00-000-0000-000
FAX: x00-000-0000-000
12
BAYERISCHE LANDESBANK
BY:
ADRESS: XXXXXXXX XXXXXXX 00
00000 XXXXXXX
ATTENTION: XX. XXXXXXXX XXXXXX/DEPT. 2530
XXXXXXXX.XXXXXXX@XXXXXXXX.XX
PHONE x00-00-0000-00000
FAX: x00-00-0000-00000
COMMERZBANK AKTIENGESELLSCHAFT
BY:
ADRESS: XXXXXXXXXXX
00000 XXXXXXXXX XX XXXX
XXXXXXXXX: XXXXXXX XXXXXXX/XXXXXX XXXXXX, ZRA XX XX
xxx-xx0-xxx@xxxxxxxxxxx.xxx
PHONE: 000-000-00
FAX: 000-000-00000
WEST LB AG
BY:
ADDRESS: XXXXXXXXX. 00
00000 XXXXXXXXXX
ATTENTION: ROLF MUWELER
XXXX-XXXXXXXX@XXXXXX.XX
PHONE: x00-000-000-00-000
FAX: x00-000-000-0000
DZ-BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
BY:
ADRESS: XXXXX XXX XXXXXXXX
00000 FRANKFURT AM MAIN
ATTENTION: XXXXXXXXX XXXXX/XXXXXX TUTTENBERG
xxxxxxxxx.xxxxx@xxxxxx.xx/xxxxxxx.xxxxxxxxxxx@xxxxxx.xx
PHONE: x00-00-0000-0000/x00-00-0000-0000
FAX: x00-00-0000-0000/x00-00-0000-0000
00
XXXXXXXXXX XXXX- XXX XXXXXXXXXXX AG
BY:
ADRESS: NL AUGSBURG
XXXXXXXXXX. 00
00000 XXXXXXXX
XXXXXXXXX: XXXXXX XXXXX
XXXXXX.XXXXXX@XXX.XX
PHONE: x00-000-000-0000
FAX: x00-000-000-0000
IKB DEUTSCHE INDUSTRIEBANK AG
BY:
ADRESS:
ATTENTION:
PHONE:
FAX:
KREDITANSTALT FUR WIEDERAUFBAU
BY:
ADDRESS: XXXXXXXXXXXXXXXXXX 0-0
00000 XXXXXXXXX XX MAIN
ATTENTION: XXXXXX XXXX/ABT. KIIA2
XXXXXX.XXXX@XXX.XX
PHONE. x00-00-0000-0000
FAX: x00-00-0000-0000
LB SACHSEN
LANDESBANK SACHSEN GIROZENTRALE
BY:
ADDRESS: XXXXXXXXXXXXXX 00
00000 XXXXXXX
ATTENTION: XXXXX XXXXXX
XXXXX.XXXXXX@XXXXXXXXX.XX
PHONE: x00-000-000-0000
FAX: x00-000-000-0000
14
MHB MITTELEUROPAISCHE HANDELSBANK AKTIENGESELLSCHAFT
DEUTSCH-POLNISCHE BANK
BY:
ADRESS:
ATTENTION:
PHONE:
FAX:
NASSAUISCHE SPARKASSE
BY:
ADRESS:
ATTENTION:
PHONE:
FAX:
KBC BANK DEUTSCHLAND AKTIENGESELLSCHAFT
BY:
ADRESS: XXXXXXXXX. 00
00000 XXXXXXXXX/XXXX
ATTENTION: PIETER RUBAAK
XXXXXXX.XXXXXX@XXX.XX
PHONE: x00-00-00000000
FAX: x00-00-00000000
KREISSPARKASSE AUGSBURG
BY:
ADDRESS: XXXXXXXXXXXXXXXXXXXXX
XXXXXX-XXXXXX-XXXXX 0
00000 XXXXXXXX
ATTENTION: XXXXXXX XXXXX
XXXXXXX.XXXXX@XXXXXXXXXXXXXX-XXXXXXXX.XX
PHONE: 0000-0000-0000
FAX: 0000-0000-0000
15
LFA FORDERBANK BAYERN
BY:
ADRESS: XXXXXXXXXX. 00
00000 XXXXXXX
ATTENTION: XXXXXX XXXXX/BIRGIT JAKOB
XXXXXX.XXXXX@XXX.XX/XXXXXX.XXXXX@XXX.XX
PHONE: x00-00-0000-0000/x00-00-0000-0000
FAX: x00-00-0000-0000
RAIFFEISEN LANDESBANK OBEROSTERREICH REG. GEN. M.B.H.
BY:
ADDRESS: XXXXXXXXXXX 0X
X-0000 XXXX
XXXXXXXXX: MAG. XXXXXXXXX XXXXX/DR. XXXXXX ZEINDLINGER
X.XXXXX@XXXXXX.XX/XXXXXXXXXXX@XXXXXX.XX
PHONE: x00-000-0000-0000/x00-000-0000-0000
FAX: x00-000-0000-0000/x00-000-0000-0000
16
