EXHIBIT 10.3
▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇ LIMITED LIABILITY PARTNERSHIP
C H A N C E
CONFORMED COPY
(INCORPORATING AMENDMENTS MADE PURSUANT TO AN
AMENDMENT AGREEMENT
DATED 16 MAY 2001)
EUR1,050,000,000
And
$540,000,000
SENIOR FACILITIES AGREEMENT
dated 28 April 2001
for
▇▇▇▇▇▇▇▇ VERWALTUNGSGESELLSCHAFT MBH
with
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
as
GLOBAL CO-ORDINATOR
and
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
BAYERISCHE HYPO-UND VEREINSBANK AG
▇.▇. ▇▇▇▇▇▇ PLC
And
THE ROYAL BANK OF SCOTLAND PLC
as
JOINT LEAD ARRANGERS
With
CHASE MANHATTAN INTERNATIONAL LIMITED
acting as Agent
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SENIOR MULTICURRENCY TERM AND REVOLVING
FACILITIES AGREEMENT
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Note: This Agreement is entered into on the basis that it will have the benefit
of and be subject to the terms of an Intercreditor Deed.
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..................................................................1
1.1 Definitions.............................................................................1
1.2 Construction...........................................................................55
1.3 Currency Symbols And Definitions.......................................................56
1.4 Third Party Rights.....................................................................56
2. The Facilities.................................................................................57
2.1 The Facilities.........................................................................57
2.2 Lenders' And Fronting Banks' Rights And Obligations....................................57
3. Purpose........................................................................................58
3.1 Purpose................................................................................58
3.2 Monitoring.............................................................................59
4. Conditions Of Utilisation......................................................................59
4.1 Initial Conditions Precedent...........................................................59
4.2 Further Conditions Precedent...........................................................59
4.3 Conditions Relating To Optional Currencies And The Euro Unit...........................60
4.4 Maximum Number Of Loans, Letters Of Credit Or Bank Guarantees..........................61
4.5 Order Of Drawing Of Facilities.........................................................61
4.6 Simultaneous Drawdown Of Certain Facilities............................................62
4.7 Drawing Of Term C Facilities...........................................................62
5. Utilisation....................................................................................63
5.1 Delivery Of A Utilisation Request......................................................63
5.2 Completion Of A Utilisation Request....................................................63
5.3 Currency And Amount....................................................................63
5.4 Lenders' And Fronting Banks' Participation.............................................64
5.5 Completion Of Letters Of Credit........................................................64
5.6 Renewal Of A Letter Of Credit Or Bank Guarantee........................................65
5.7 Restrictions On Participation In Letters Of Credit.....................................65
5.8 Restrictions On Participation In Bank Guarantees.......................................65
6. Optional Currencies............................................................................66
6.1 Selection Of Currency..................................................................66
6.2 Unavailability Of A Currency...........................................................66
6.3 Change Of Currency.....................................................................67
6.4 Same Optional Currency During Successive Interest Periods..............................68
6.5 Agent's Calculations...................................................................68
7. Repayment......................................................................................69
7.1 Repayment Of Term Disposal Facility Loans..............................................69
7.2 Repayment Of Term A Facility Loans.....................................................69
7.3 Repayment Of Term B Dollar Facility Loans..............................................70
7.4 Repayment Of Term B Euro Facility Loans................................................70
7.5 Repayment Of Term C Euro Facility Loans................................................71
7.6 Repayment Of Term C Dollar Facility Loans..............................................71
7.7 Repayment Of Revolving Facility Loans..................................................72
8. Borrower's Liabilities In Relation To Letters Of Credit And Bank Guarantees....................72
8.1 Demands Under Letters Of Credit And Bank Guarantees....................................72
8.2 Borrowers' Indemnity To Fronting Banks.................................................72
8.3 Borrowers' Indemnity To Lenders........................................................72
8.4 Preservation Of Rights.................................................................73
8.5 Settlement Conditional.................................................................73
8.6 Right To Make Payments Under Letters Of Credit And Bank Guarantees.....................73
9. Prepayment And Cancellation....................................................................74
9.1 Illegality.............................................................................74
9.2 Change Of Control......................................................................74
9.3 Flotation Or Sale......................................................................75
9.4 Excess Cash Flow.......................................................................75
9.5 Asset Disposals........................................................................75
9.6 Insurance Proceeds.....................................................................76
9.7 Acquisition Recovery Proceeds..........................................................77
9.8 Application Of Prepayments.............................................................78
9.9 Prepayment Escrow Accounts.............................................................79
9.10 Voluntary Cancellation.................................................................80
9.11 Voluntary Prepayment Of Term Facility Loans............................................81
9.12 Voluntary Prepayment Of Revolving Facility Loans.......................................82
9.13 Prepayment Premium.....................................................................82
9.14 Right Of Repayment And Cancellation In Relation To A Single Lender Or Fronting Bank....83
9.15 Restrictions...........................................................................84
9.16 Automatic Cancellation.................................................................84
10. Interest.......................................................................................85
10.1 Calculation Of Interest................................................................85
10.2 Margin Ratchets........................................................................85
10.3 Margin Changes.........................................................................86
10.4 Default Margin.........................................................................86
10.5 Payment Of Interest....................................................................86
10.6 Default Interest.......................................................................86
10.7 Notification Of Rates Of Interest......................................................87
11. Interest Periods And Terms.....................................................................87
11.1 Selection Of Interest Periods And Terms................................................87
11.2 Changes To Interest Periods............................................................88
11.3 Non-Business Days......................................................................88
11.4 Consolidation And Division Of Term Facility Loans......................................88
12. Changes To The Calculation Of Interest.........................................................89
12.1 Absence Of Quotations..................................................................89
12.2 Market Disruption......................................................................89
12.3 Alternative Basis Of Interest Or Funding...............................................90
12.4 Break Costs............................................................................90
13. Fees...........................................................................................90
13.1 Commitment Fee.........................................................................90
13.2 Letter Of Credit Commission............................................................91
13.3 Bank Guarantee Commission..............................................................91
13.4 Fronting Bank Fee......................................................................91
13.5 Arrangement Fee........................................................................91
13.6 Agency Fee.............................................................................91
13.7 Security Trustee Fee...................................................................91
14. Tax Gross Up And Indemnities...................................................................92
14.1 Definitions............................................................................92
14.2 Tax Gross-Up...........................................................................93
14.3 Tax Indemnity..........................................................................94
14.4 Tax Credit.............................................................................95
14.5 Stamp Taxes............................................................................95
14.6 Value Added Tax........................................................................95
15. Increased Costs................................................................................95
15.1 Increased Costs........................................................................95
15.2 Increased Cost Claims..................................................................96
15.3 Exceptions.............................................................................96
16. Other Indemnities..............................................................................96
16.1 Currency Indemnity.....................................................................96
16.2 Other Indemnities......................................................................97
16.3 Indemnity To The Agent.................................................................97
17. Mitigation By The Lenders......................................................................97
17.1 Mitigation.............................................................................97
17.2 Limitation Of Liability................................................................98
18. Costs And Expenses.............................................................................98
18.1 Transaction Expenses...................................................................98
18.2 Amendment Costs........................................................................98
18.3 Enforcement Costs......................................................................98
19. Guarantee And Indemnity........................................................................99
19.1 Guarantee And Indemnity................................................................99
19.2 Continuing Guarantee...................................................................99
19.3 Reinstatement..........................................................................99
19.4 Waiver Of Defences.....................................................................99
19.5 Immediate Recourse....................................................................100
19.6 Appropriations........................................................................100
19.7 Deferral Of Guarantors' Rights........................................................100
19.8 Additional Security...................................................................101
19.9 Limitation On German Obligor Guarantee................................................101
19.10 Limitation On Us Obligor Guarantee....................................................103
19.11 Limitation On French Obligor Guarantee................................................103
19.12 Limitation On Luxembourg Obligor......................................................104
19.13 Third Party Rights Of Hedge Counterparties............................................104
20. Representations...............................................................................105
20.1 Signing Representations Of The Company................................................105
20.2 Closing Representations...............................................................105
20.3 Other Representations.................................................................105
20.4 Status................................................................................106
20.5 Binding Obligations...................................................................106
20.6 Non-Conflict With Other Obligations...................................................106
20.7 Power And Authority...................................................................106
20.8 Validity And Admissibility In Evidence................................................106
20.9 Governing Law And Enforcement.........................................................107
20.10 No Filing Or Stamp Taxes..............................................................107
20.11 No Default............................................................................107
20.12 No Misleading Information.............................................................107
20.13 Financial Statements..................................................................108
20.14 Financial Year End....................................................................108
20.15 Pari Passu Ranking....................................................................108
20.16 No Proceedings Pending Or Threatened..................................................108
20.17 Environmental Compliance..............................................................108
20.18 Environmental Claims..................................................................109
20.19 Taxation..............................................................................109
20.20 Security And Financial Indebtedness...................................................109
20.21 Security Interests....................................................................109
20.22 Intellectual Property.................................................................110
20.23 Good Title To Assets..................................................................110
20.24 Reports...............................................................................110
20.25 Business Plan.........................................................................110
20.26 Budgets...............................................................................111
20.27 Group Structure.......................................................................111
20.28 Ownership Of Obligors.................................................................112
20.29 Consents And Approvals................................................................112
20.30 Acquisition Documents.................................................................112
20.31 Issue Of Share Capital................................................................112
20.32 No Trading............................................................................113
20.33 Pensions..............................................................................113
20.34 Erisa And Multiemployer Plans.........................................................113
20.35 Margin Stock..........................................................................114
20.36 Investment Companies..................................................................115
21. Information Undertakings......................................................................115
21.1 Financial Statements..................................................................115
21.2 Compliance Certificates...............................................................116
21.3 Budgets...............................................................................116
21.4 Requirements As To Financial Statements...............................................117
21.5 Information: Miscellaneous............................................................118
21.6 Notification Of Default...............................................................119
21.7 Erisa Related Information.............................................................119
22. Financial Covenants...........................................................................119
22.1 Financial Definitions.................................................................119
22.2 Financial Condition...................................................................125
22.3 Capital Expenditure...................................................................127
22.4 Financial Testing.....................................................................129
22.5 Adjustments...........................................................................129
23. General Undertakings..........................................................................129
23.1 Authorisations........................................................................129
23.2 Compliance With Laws..................................................................130
23.3 Negative Pledge.......................................................................130
23.4 Loans And Guarantees..................................................................130
23.5 Financial Indebtedness................................................................131
23.6 Acquisitions..........................................................................131
23.7 Joint Ventures And Non Wholly-Owned Subsidiaries......................................131
23.8 Joint Ventures........................................................................133
23.9 Dividends And Distributions...........................................................133
23.10 Subordinated Debt.....................................................................133
23.11 Disposals.............................................................................133
23.12 Merger................................................................................134
23.13 Change Of Business....................................................................134
23.14 Insurance.............................................................................135
23.15 Environmental Compliance..............................................................136
23.16 Environmental Claims..................................................................136
23.17 Taxation..............................................................................136
23.18 Security..............................................................................137
23.19 Pensions..............................................................................137
23.20 Access................................................................................137
23.21 Preservation Of Assets................................................................137
23.22 Intellectual Property.................................................................138
23.23 Vendor Warranties And Acquisition Closing Conditions..................................138
23.24 Amendments............................................................................138
23.25 Transactions With Related Parties.....................................................140
23.26 Fees And Commissions..................................................................140
23.27 Treasury Transactions.................................................................140
23.28 The Acquisition.......................................................................140
23.29 Hedging...............................................................................141
23.30 Guarantor Group And Security Coverage.................................................141
23.31 Accounting Reference Date.............................................................143
23.32 Revised Group Structure...............................................................144
23.33 Syndication...........................................................................144
23.34 Federal Reserve Regulations...........................................................144
23.35 Compliance With Erisa.................................................................144
23.36 Limitation On The Lenders' Control Over German Obligors...............................144
23.37 Conditions Subsequent.................................................................145
23.38 Total Debt Relief Amount..............................................................145
23.39 Debtco Exit Date......................................................................145
23.40 Payments Under Debtco Intra-Group Loans...............................................146
24. Events Of Default.............................................................................146
24.1 Non-Payment...........................................................................146
24.2 Financial Covenants...................................................................146
24.3 Other Obligations.....................................................................146
24.4 Misrepresentation.....................................................................146
24.5 Cross Default.........................................................................147
24.6 Insolvency............................................................................147
24.7 Insolvency Proceedings................................................................148
24.8 Creditors' Process....................................................................148
24.9 Transaction Security..................................................................148
24.10 Other Indebtedness....................................................................149
24.11 Subordination Agreements..............................................................149
24.12 Unlawfulness..........................................................................149
24.13 Repudiation...........................................................................149
24.14 Material Adverse Change...............................................................149
24.15 Acceleration..........................................................................149
24.16 Closing Period........................................................................150
24.17 Clean-Up Period.......................................................................150
25. Changes To The Lenders........................................................................152
25.1 Assignments And Transfers By The Lenders..............................................152
25.2 Conditions Of Assignment Or Transfer..................................................152
25.3 Assignment Or Transfer Fee............................................................153
25.4 Limitation Of Responsibility Of Existing Lenders......................................153
25.5 Procedure For Transfer................................................................154
25.6 Sub-Participations By Lenders.........................................................155
25.7 Disclosure Of Information.............................................................155
26. Changes To The Obligors.......................................................................155
26.1 Assignment And Transfers By Obligors..................................................155
26.2 Additional Borrowers..................................................................155
26.3 Resignation Of A Borrower.............................................................156
26.4 Additional Guarantors.................................................................157
26.5 Repetition Of Representations.........................................................157
26.6 Resignation Of A Guarantor............................................................157
26.7 Transfers On Debtco Introduction Date.................................................157
26.8 Transfers On Debtco Exit Date.........................................................158
26.9 German Security And Debtco Introduction Date..........................................159
26.10 Company Ceases To Be Party On Mgg Accession...........................................159
26.11 Mgg Accession.........................................................................159
27. Role Of The Agent And The Arrangers And The Obligor's Agent...................................160
27.1 Appointment Of The Agent..............................................................160
27.2 Duties Of The Agent...................................................................160
27.3 Role Of The Arrangers.................................................................160
27.4 No Fiduciary Duties...................................................................160
27.5 Business With The Group...............................................................160
27.6 Rights And Discretions Of The Agent...................................................160
27.7 Majority Lenders' Instructions........................................................161
27.8 Responsibility For Documentation......................................................162
27.9 Exclusion Of Liability................................................................162
27.10 Lenders' Indemnity To The Agent.......................................................162
27.11 Resignation Of The Agent..............................................................162
27.12 Confidentiality.......................................................................163
27.13 Relationship With The Lenders.........................................................163
27.14 Credit Appraisal By The Lenders And The Fronting Banks................................164
27.15 Reference Banks.......................................................................164
27.16 Obligor's Agent.......................................................................164
27.17 Reliance, Priority And Engagement Letters.............................................165
28. The Lenders And The Fronting Banks............................................................165
28.1 Lenders' Indemnity....................................................................165
28.2 Direct Participation..................................................................165
28.3 Obligations Not Discharged............................................................166
28.4 Settlement Conditional................................................................166
28.5 Exercise Of Rights....................................................................167
28.6 Beneficiary A Lender..................................................................167
29. Conduct Of Business By The Finance Parties....................................................167
30. Sharing Among The Lenders.....................................................................167
30.1 Payments To Lenders...................................................................167
30.2 Redistribution Of Payments............................................................168
30.3 Recovering Lender's Rights............................................................168
30.4 Reversal Of Redistribution............................................................168
30.5 Exceptions............................................................................168
31. Payment Mechanics.............................................................................169
31.1 Payments To The Agent.................................................................169
31.2 Distributions By The Agent............................................................169
31.3 Distributions To An Obligor...........................................................169
31.4 Clawback..............................................................................169
31.5 Partial Payments......................................................................169
31.6 No Set-Off By Obligors................................................................170
31.7 Business Days.........................................................................170
31.8 Currency Of Account...................................................................170
31.9 Change Of Currency....................................................................171
32. Set-Off.......................................................................................171
33. Notices.......................................................................................171
33.1 Communications In Writing.............................................................171
33.2 Addresses.............................................................................172
33.3 Delivery..............................................................................172
33.4 Notification Of Address, Fax Number And Telex Number..................................172
33.5 English Language......................................................................173
34. Calculations And Certificates.................................................................173
34.1 Accounts..............................................................................173
34.2 Certificates And Determinations.......................................................173
34.3 Day Count Convention..................................................................173
35. Partial Invalidity............................................................................173
36. Remedies And Waivers..........................................................................173
37. Amendments And Waivers........................................................................173
37.1 Required Consents.....................................................................173
37.2 Exceptions............................................................................174
37.3 Amendments By Security Trustee........................................................174
37.4 Amendments By Obligor's Agent.........................................................174
37.5 Amendment To Correct Manifest Error...................................................175
38. Counterparts..................................................................................175
39. Governing Law.................................................................................176
40. Enforcement...................................................................................176
40.1 Jurisdiction Of English Courts........................................................176
40.2 Service Of Process....................................................................176
41. Waiver Of Jury Trial..........................................................................176
Schedule 1 THE CLOSING PARTIES.......................................................................177
Schedule 2 CONDITIONS PRECEDENT......................................................................180
Schedule 3 REQUESTS..................................................................................190
Schedule 4 MANDATORY COST FORMULAE...................................................................194
Schedule 5 FORM OF TRANSFER CERTIFICATES.............................................................197
Schedule 6 FORM OF ACCESSION LETTER..................................................................210
Schedule 7 FORM OF RESIGNATION LETTER................................................................207
Schedule 8 FORM OF COMPLIANCE CERTIFICATE............................................................208
Schedule 9 RESTRUCTURING PROGRAMME...................................................................210
Schedule 10 TIMETABLES...............................................................................212
Schedule 11 FORM OF BANK GUARANTEE...................................................................216
Schedule 12 FORM OF LETTER OF CREDIT.................................................................219
Schedule 13 MATERIAL COMPANIES AS AT SIGNING.........................................................220
Schedule 14 FORM OF AUDITOR'S REPORT.................................................................221
Schedule 15 SECURITY PRINCIPLES......................................................................223
Schedule 16 DISPOSAL PLAN............................................................................227
Schedule 17 CENTRAL AMERICAN ENTITIES................................................................230
THIS AGREEMENT is dated 28 April 2001 and made between:
(1) ▇▇▇▇▇▇▇▇ VERWALTUNGSGESELLSCHAFT MBH (the "COMPANY") (which is
anticipated to have its name changed to ▇▇▇▇▇▇ Griesheim Group GmbH and
then to be converted into a German partnership limited by shares (GmbH &
Co. KGaA) named ▇▇▇▇▇▇ Griesheim Group GmbH & Co. KGaA on or shortly
after the Closing Date referred to below);
(2) THE PERSONS who become Borrowers pursuant to the provisions of this
Agreement;
(3) THE PERSONS who become Guarantors pursuant to the provisions of this
Agreement;
(4) ▇▇▇▇▇▇▇ SACHS INTERNATIONAL as Global Co-ordinator (the "GLOBAL
CO-ORDINATOR);
(5) ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL, BAYERISCHE HYPO-UND VEREINSBANK AG, ▇.▇.
▇▇▇▇▇▇ PLC and THE ROYAL BANK OF SCOTLAND PLC as Joint Lead Arrangers
(the "ARRANGERS");
(6) THE PERSONS listed in Part II of Schedule 1 (THE CLOSING PARTIES) as
lenders (the "ORIGINAL LENDERS");
(7) CHASE MANHATTAN INTERNATIONAL LIMITED as agent of the Lenders (the
"AGENT"); and
(8) CHASE MANHATTAN INTERNATIONAL LIMITED as security trustee for the
Finance Parties (the "SECURITY TRUSTEE").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a document substantially in the form set out in
Schedule 6 (FORM OF ACCESSION LETTER).
"ACQUISITION" means the China Acquisition and the MGG Acquisition.
"ACQUISITION CLOSING CONDITIONS" means each of the conditions to closing
of the Acquisition set out in clauses 3.1(f) (MATERIAL ADVERSE CHANGE),
3.1(g) (REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT) and 3.1(h) (NO
INSOLVENCY OF CERTAIN MEMBERS OF THE MGG GROUP) of the Business
Combination Agreement.
"ACQUISITION DOCUMENTS" means the Business Combination Agreement, all
documents executed pursuant to the Business Combination Agreement on or
before the Closing Date, the Combination Documents defined therein, the
Call Option defined therein, the Counter-Call Option defined therein,
the Counter-Put Option defined therein, the Aventis Guarantee provided
pursuant to exhibit 3.1 (j) thereof and each other document (if any)
relating to the
-1-
transactions contemplated in the Business Combination Agreement and
identified by the Agent and the Company in writing as an Acquisition
Document.
"ACQUISITION RECOVERY PROCEEDS" means the proceeds of any payment made
by the Vendor, or the Vendor's Affiliates (including, without
limitation, Aventis China and Aventis), employees, officers or advisers
under or in relation to the Acquisition Documents including (without
limitation) the proceeds of any payment in respect of a claim for breach
of contract or warranty, misrepresentation or a claim under an indemnity
PROVIDED THAT to the extent that any such proceeds (or any portion
thereof) relate to Indemnified Unconsolidated Debt or otherwise do not
relate to any matter which affects or is connected with the equity value
of the MGG Group they shall not be treated as Acquisition Recovery
Proceeds. For the avoidance of doubt, proceeds received pursuant to
section 4.14 (NON-FULFILMENT OF COUNTER-CALL) of the Business
Combination Agreement shall not be treated as Acquisition Recovery
Proceeds.
"ACQUISITION REMEDY" means the application of Acquisition Recovery
Proceeds towards:
(a) the discharge of a liability, charge or claim made upon any
member of the Group, where the Vendor is obliged under the
Acquisition Documents to indemnify or otherwise reimburse the
relevant member of the Group for such a liability, charge or
claim (and, for the avoidance of any doubt, this paragraph
applies to the application of amounts paid by the Vendor as a
result of breach of section 5.19 (CONSOLIDATED DEBT AT YEAR
END) of the BCA to the repayment of Existing Indebtedness by a
member of the Group); or
(b) reimbursing a member of the Group for monies disbursed in
connection with discharging any liability, charge or claim
referred to in paragraph (a) above; or
(c) replacing, reinstating and/or repairing assets of the Group
where the loss of, or damage to, such assets gave rise to a
claim for breach of contract or warranty, misrepresentation or
a claim under an indemnity under the Acquisition Documents.
For the purposes of this definition, "GROUP" shall at all times include
the Company.
"ADDITIONAL BASKET" means, at any time, an amount equal to the aggregate
amount of:
(a) Available Excess Cash Flow and Deemed Available Net Disposal
Proceeds and Available Net Disposal Proceeds and 25% of Total
Debt Relief Amount at such time; less
(b) the aggregate amount which has been used for acquisitions
pursuant to paragraph (h) of the definition of Permitted
Acquisitions and the aggregate amount which has been used in
Capital Expenditure under paragraph (c)(iii) of Clause 22.3
(CAPITAL EXPENDITURE) and the aggregate amount allocated to be
funded out of the Additional Basket pursuant to the provisions
of paragraph (c) of Clause 23.7 (JOINT VENTURES AND NON
WHOLLY-OWNED SUBSIDIARIES) at such time.
"ADDITIONAL BORROWER" means a company which becomes an Additional
Borrower in accordance with Clause 26 (CHANGES TO THE OBLIGORS).
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"ADDITIONAL GUARANTOR" means a company which 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 or any other person which is under common control
with that person (and for these purposes, "CONTROL" has the meaning
given to it in section 416 of the Income and Corporation Taxes Act 1988
in force as at the date of this Agreement).
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the
London foreign exchange market at or about 11:00 a.m. on a particular
day.
"ALLIANZ" means Allianz Capital Partners GmbH and/or any of its
Affiliates.
"AUDITOR'S REPORT" means a report of the auditors of Newco 2 in
substantially the form set out in Schedule 14 (FORM OF AUDITOR'S
REPORT).
"AUSTRIAN GUARANTEE" means the guarantee to be entered into by ▇▇▇▇▇▇
Austria GmbH in the agreed form.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
"AVAILABILITY PERIOD" means:
(a) in relation to the Term Disposal Facility the period from and
including the date of this Agreement to and including the day
falling 90 days after the Closing Date;
(b) in relation to the Term A Facility, the period from and
including the date of this Agreement to and including the day
falling 90 days after the Closing Date;
(c) in relation to the Term B Euro Facility, the period from and
including the date of this Agreement to and including the day
falling 45 days after the Closing Date;
(d) in relation to the Term B Dollar Facility, the period from and
including the date of this Agreement to and including the day
falling 45 days after the Closing Date;
(e) in relation to the Term C Euro Facility, the period from and
including the date of this Agreement to and including the day
falling 10 Business Days after the Closing Date;
(f) in relation to the Term C Dollar Facility, the period from and
including the date of this Agreement to and including the day
falling 10 Business Days after the Closing Date; and
(g) in relation to each Revolving Facility, the period from and
including the date of this Agreement to and including the date
falling 83 Months after the Base Date.
If any of the above provisions of this definition of Availability Period
would operate so that (but for this provision) any Availability Period
ended on a day which is not a Business Day,
-3-
then such Availability Period shall end on the immediately first
Business Day to occur after such day.
"AVAILABLE COMMITMENT" means, in relation to a Facility and a Lender,
that Lender's Commitment under that Facility minus:
(a) the Base Currency Amount of its participation in any
outstanding Loans (and, in the case of a Revolving Facility,
any outstanding Letters of Credit and Bank Guarantees) under
that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency
Amount of its participation in any Loans (and, in the case of
a Revolving Facility, any Letters of Credit and Bank
Guarantees) that are due to be made under that Facility on or
before the proposed Utilisation Date,
other than, in relation to a Revolving Facility only, that Lender's
participation in any Revolving Facility Loans, Letters of Credit or Bank
Guarantees under that Revolving Facility that are due to be repaid,
prepaid or expire on or before the proposed Utilisation Date.
"AVAILABLE EXCESS CASH FLOW" means, at any time, any Excess Cash Flow
generated after 1 January 2001 which is not required to be applied in
prepayment of the Facilities in accordance with Clause 9.4 (EXCESS CASH
FLOW).
"AVAILABLE FACILITY" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
"AVAILABLE NET DISPOSAL PROCEEDS" means, at any time, in respect of Net
Disposal Proceeds 75% (and not 100%) of which are or have been required
to be applied in prepayment of the Facilities (other than the Term
Disposal Facility) in accordance with Clause 9.5 (ASSET DISPOSALS), an
amount equal to the aggregate of 25% of such Net Disposal Proceeds.
"AVENTIS CHINA" means Aventis (China) Investment Co. Ltd.
"BANK GUARANTEE" means a bank guarantee issued or to be issued by a
Fronting Bank under a Revolving Facility substantially in the form set
out in Schedule 11 (FORM OF BANK GUARANTEE) or in such other form
requested by a Borrower which is acceptable to the Agent and the
relevant Fronting Bank.
"BASE CURRENCY" means (a) for all purposes other than in relation to the
Dollar Facilities and the Term Disposal Facility, euro and (b) in
relation to the Dollar Facilities and the Term Disposal Facility only,
dollars.
"BASE CURRENCY AMOUNT" means, in relation to a Loan, Letter of Credit or
Bank Guarantee, the amount specified in the Utilisation Request for that
Loan, Letter of Credit or Bank Guarantee or, if the amount requested is
not denominated in the relevant Base Currency, that amount converted
into the relevant Base Currency at the Agent's Spot Rate of Exchange on
the date which is:
(a) in relation to a Utilisation three Business Days before the
Utilisation Date (or, if later, on the date the Agent receives
the Utilisation Request); or
-4-
(b) in the case of a renewal or revaluation of a Letter of Credit
or Bank Guarantee the date falling two Business Days before
its issue date or any renewal date,
in each case as adjusted to reflect any repayment (other than, in
relation to a Term Facility, a repayment arising from a change of
currency), prepayment, consolidation or division or reduction of the
Loan, Letter of Credit or, as the case may be, Bank Guarantee.
"BASE DATE" means the earlier to occur of (a) the Closing Date and (b) 4
May 2001.
"BOOKRUNNERS" means those Arrangers defined as Bookrunners in the
Syndication Letter.
"BORROWER" means an Additional Borrower (including, for the avoidance of
doubt, any Initial Borrower which is an Additional Borrower) unless it
has ceased to be a Borrower in accordance with Clause 26 (CHANGES TO THE
OBLIGORS).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest (excluding for the avoidance of doubt, Margin and
Mandatory Cost) which a Lender should have received for the
period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the
current Interest Period in respect of that Loan or Unpaid Sum,
had the principal amount or Unpaid Sum received been paid on
the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the Relevant
Interbank Market for a period starting on the Business Day
following receipt or recovery and ending on the last day of
the current Interest Period.
"BUDGET" means a budget delivered by the Obligor's Agent to the Agent
pursuant to Clause 21.3 (BUDGETS) or Part I of Schedule 2 (CONDITIONS
PRECEDENT).
"BUSINESS COMBINATION AGREEMENT" or "BCA" means the business combination
agreement dated as of 30/31 December 2000 between MIG, MGG, the Company,
the Vendor and Hoechst Newco 3 (as amended pursuant to amendment
agreements dated 7 February 2001, 9 February 2001, 5 March 2001, 20
March 2001 and 30 March 2001 and any other amendment agreement in the
agreed form entered into on or prior to the date of this Agreement),
setting out the terms of the Acquisition, together with all schedules,
exhibits and attachments to such agreement.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and Frankfurt and:
(a) (in relation to any date for payment or purchase of a currency
other than euro) the principal financial centre of the country
of that currency; or
(b) (in relation to any date for payment or purchase of euro) any
TARGET Day.
"BUSINESS PLAN" means the financial model for the period beginning on 1
January 2001 and ending on 31 December 2010 including profit and loss
accounts, balance sheets and cash flow
-5-
projections, in agreed form, relating to the Group (for these purposes
assuming completion of the Acquisition).
"CAPITAL EXPENDITURE" has the meaning given to it in Clause 22.1
(FINANCIAL DEFINITIONS).
"CASH COLLATERAL" means, in relation to any Letter of Credit or L/C
Proportion of a Letter of Credit or any Bank Guarantee or Guarantee
Proportion of a Bank Guarantee, a deposit in an interest-bearing account
or accounts reasonably acceptable to the Agent, that deposit and account
to be secured in favour of, and on terms and conditions acceptable to,
the Agent (acting reasonably).
"CASH COLLATERAL DOCUMENTS" means any documents as the Agent may
specify, to be entered into in relation to the Cash Collateral.
"CASH EQUIVALENT INVESTMENTS" has the meaning given to it in Clause 22.1
(FINANCIAL DEFINITIONS).
"CENTRAL AMERICAN ENTITIES" means the entities specified in Schedule 17
(CENTRAL AMERICAN ENTITIES).
"CHANGE OF CONTROL" means any one of the following:
(a) ▇▇▇▇▇▇▇ Sachs Managed Funds and Allianz cease to own (directly
or indirectly) in aggregate more than 50% of the Financial
Investors Shares; or
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Managed Funds cease to own (directly or
indirectly) at least 15% of the Total Shares; or
(c) Allianz cease to own (directly or indirectly) at least 15% of
the Total Shares; or
(d) a person (other than MIG) (together with its Affiliates) owns
(directly or indirectly) more of the Total Shares than the
Total Shares owned by Allianz and ▇▇▇▇▇▇▇ Sachs Managed Funds;
or
(e) the Company does not or ceases to own (directly or indirectly)
all of the issued share capital of Newco 2 (or, if converted
into a KG or a KGaA, its general partner) or MGG or (during
the Debtco Structure Period, Debtco).
For the purpose of this definition:
(i) "FINANCIAL INVESTORS SHARES" means the shares in the Company
held by the Initial Sponsors on the Closing Date and all other
shares in the Company (and, following its conversion into a
KgaA or KG, all of the shares in its general partner) issued
to any of the Initial Sponsors or any of their Successors (as
defined in Section 21 of the Shareholders' Agreement); and
(ii) "TOTAL SHARES" means all of the issued shares of the Company
and, following its conversion into a KgaA or KG, all of the
shares in its general partner.
"CHINA ACQUISITION" means the acquisition by MGG and/or one or more
Subsidiaries of MGG of the ACIC Gas Interests (as defined in the
Business Combination Agreement) and certain
-6-
other assets of Aventis China from Aventis China pursuant to the terms
of the Business Combination Agreement and the China SPA (as defined
therein).
"CHINA SUBORDINATION AGREEMENT" means a subordination agreement in the
agreed form between, among others, MGG, any other member of the MGG
Group (a "RELEVANT MEMBER") which acquires any of the ACIC Gas Interests
(as defined in the BCA) and/or any other assets pursuant to the China
Acquisition and the Company pursuant to which the rights of the Company
to make any claims against MGG and each Relevant Member as a result of
any payment made by the Company under the China Purchase Price Guarantee
(as defined in Section 2.5 (Sale of China Interests) of the BCA are
restricted and subordinated.
"CLEAN-UP DATE" means the day which is three Months after the Closing
Date.
"CLOSING DATE" has the meaning ascribed to it in the Business
Combination Agreement.
"CLOSING EVENT OF DEFAULT" means any Event of Default other than any
Event of Default under any of the following: Clause 24.3 (OTHER
OBLIGATIONS), Clause 24.4 (MISREPRESENTATION) (excluding any Event of
Default arising thereunder as a result of a Closing Representation being
incorrect or misleading), Clause 24.5 (CROSS DEFAULT), Clause 24.6
(INSOLVENCY), Clause 24.7 (INSOLVENCY PROCEEDINGS), Clause 24.8
(CREDITORS' PROCESS), Clause 24.9 (TRANSACTION SECURITY), Clause 24.10
(OTHER INDEBTEDNESS) and Clause 24.14 (MATERIAL ADVERSE CHANGE).
"CLOSING PERIOD" means the period beginning the moment after the MGG
Acquisition is completed on the Closing Date and ending on the day
falling 20 Business Days after the Closing Date.
"CLOSING REPRESENTATIONS" means, in relation to the Obligor's Agent and
any Obligor, each of the representations set out in Clauses 20.4
(STATUS) to Clause 20.9 (GOVERNING LAW AND ENFORCEMENT) (inclusive but
excluding paragraph (c) of Clause 20.6 (NON-CONFLICT WITH OTHER
OBLIGATIONS)) and paragraph (d) of Clause 20.12 (NO MISLEADING
INFORMATION) and additionally, in relation to the Obligor's Agent only,
Clause 20.28 (OWNERSHIP OF OBLIGORS), paragraphs (a) and (b) of Clause
20.30 (ACQUISITION DOCUMENTS) and Clause 20.32 (NO TRADING).
"CLOSING UTILISATION" means any Utilisation which has a date falling
within the Closing Period as its proposed Utilisation Date.
"CODE" means, on any date, the United States Internal Revenue Code of
1986 (or any successor legislation thereto), as amended, and the
regulations promulgated and rulings issued thereunder, all as the same
may be in effect at such date.
"COMMITMENT" means a Term Disposal Facility Commitment, Term A Facility
Commitment, Term B Euro Facility Commitment, Term B Dollar Facility
Commitment, Term C Euro Facility Commitment, Term C Dollar Facility
Commitment, Revolving Facility I Commitment or Revolving Facility II
Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 8 (FORM OF COMPLIANCE CERTIFICATE.)
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"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking in the
standard form from time to time of the LMA or in any other form agreed
between the Obligor's Agent and the Agent or in any other form on
equivalent terms.
"CONSOLIDATED SUBSIDIARY" means, in relation to any company or
corporation, a Subsidiary of such company or corporation whose financial
statements are required by IAS to be included in the consolidated annual
financial statements of that company or corporation.
"CONSULTANTS REPORT" means a report by an appropriate institution in
relation to the financial control and central cash management systems of
the MGG Group as they currently exist and advising on how improved
centralised cash management systems should be implemented.
"CORE COUNTRY" means any OECD Country.
"COST SAVINGS" means the cost savings in connection with the MGG Group,
as identified in the Business Plan.
"DEBT RELIEF AMOUNT" means, in relation to a Permitted Disposal of any
asset (other than, for the avoidance of doubt, an asset of an
Unconsolidated Subsidiary of MGG or any shares in an Unconsolidated
Subsidiary of MGG), the amount by which Indebtedness for Borrowed Money
of the MGG Group (without double counting) is reduced as a result of
such disposal of such asset by a member of the MGG Group by reason of
the purchaser of the asset acquiring such asset subject to (or together
with) such Indebtedness for Borrowed Money.
"DEBTCO" means a company incorporated in Germany as a GmbH which has (or
will have) as its sole shareholder Newco 2 and which is intended to
become the sole shareholder of MGG and accede to this Agreement as a
Borrower if twelve Months after the date of this Agreement the High
Yield Notes have not been issued and there might reasonably be expected
to be adverse German Tax implications in having MGG (rather than Debtco)
as the German Group Member which is a Borrower.
"DEBTCO EXIT DATE" means the date the Agent (after consultation with the
Obligor's Agent) confirms to the Obligor's Agent and the Lenders as the
Debtco Exit Date for the purpose of the Finance Documents (and in
particular Clause 26.8 (TRANSFERS ON DEBTCO EXIT DATE)) PROVIDED THAT
the Agent may not notify such Parties of such date unless the following
have been satisfied:
(a) each of the Initial German Borrowers have become Borrowers in
accordance with Clause 26.2 (ADDITIONAL BORROWERS);
(b) the Agent has received a Debtco Exit Transfer Certificate
executed by Debtco and each Initial German Borrower in form
and substance satisfactory to it;
(c) the Agent has received evidence satisfactory to it (acting
reasonably) that on the Debtco Exit Date:
(i) Newco 2 will become the sole shareholder of MGG
(subject only to completion of formalities in
relation to registration of the transfer, it being
acknowledged that such formalities will be so far as
practicable pre-approved by the relevant German
Court) and upon Debtco ceasing to be the shareholder
-8-
of MGG the shares in MGG will be or will remain
pledged pursuant to a Security Document entered into
by Newco 2;
(ii) MGG will assume the rights and obligations of Debtco
under (1) any Subordination Agreement already entered
into; (2) any Newco 2 Loan Agreement already entered
into; (3) any High Yield Proceeds Loan Agreement
already entered into; and (4) any Exchange Notes Loan
already entered into; and
(iii) all rights which Debtco has against any member of the
Newco 2 Group will be unconditionally released and
discharged.
"DEBTCO EXIT TRANSFER CERTIFICATE" means a certificate executed by
Debtco and each Initial German Borrower and the Agent in substantially
the form set out in Part III (DEBTCO EXIT TRANSFER CERTIFICATE) of
Schedule 5.
"DEBTCO INTRODUCTION DATE" means the date the Agent (following a request
to do so by the Obligor's Agent) confirms to the Obligor's Agent and the
Lenders as the Debtco Introduction Date for the purpose of the Finance
Documents (and, in particular, for the purposes of Clause 26.7
(TRANSFERS ON DEBTCO INTRODUCTION DATE)) which shall be a date falling
within 10 Business Days of the date of the notice given by the Agent
pursuant to paragraph (c) of Clause 26.2 (ADDITIONAL BORROWERS) in
relation to Debtco's accession as a Borrower.
"DEBTCO PERMITTED DISTRIBUTIONS" means each of the following:
(a) dividends paid by Debtco to Newco 2;
(b) payments of any amounts by Debtco to Newco 2 in respect of any
indebtedness under any Newco 2 Loan Agreement; and
(c) loans made by Debtco to Newco 2,
PROVIDED THAT at the time any such dividend or payment is paid or loan
is advanced to Newco 2 all of the following conditions are satisfied:
(A) at least EUR250,000,000 (or its equivalent) of the Term
Facilities have been permanently repaid;
(B) there is no Default which is continuing; and
(C) the amount of any such dividend, payment or loan when
aggregated with all other dividends, payments or loans
referred to in (a), (b) and (c) above made in the calendar
year in which such dividend, payment or loan is proposed to be
made would not exceed EUR7,500,000 or its equivalent.
"DEBTCO STRUCTURE PERIOD" means the period (if any) from the Debtco
Introduction Date until the earlier of (1) the Debtco Exit Date and (2)
the date on which no obligations are outstanding under this Agreement.
"DEEMED AVAILABLE NET DISPOSAL PROCEEDS" means, at any time, an amount
equal to 25% of the aggregate amount of Net Disposal Proceeds arising
from disposals made after the Closing
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Date which are required to be applied in prepayment of the Term
Disposal Facility in accordance with Clause 9.5 (ASSET DISPOSALS).
"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 or the giving of notice under the Finance Documents or
any combination of any of the foregoing) be an Event of Default.
"DEFERRED PURCHASE PRICE" means the amount of EUR230,000,000 plus
interest thereon which is payable by the Company pursuant to the terms
of section 2.7(a)(ii) and (d) of the BCA on the third anniversary of the
Closing Date (or otherwise as stated in such section 2.7(a)(ii) and (d)
of the BCA) as part of the consideration payable in respect of the MGG
Acquisition.
"DIRECT MEZZANINE REFINANCING" means any form of debt financing pursuant
to which MGG is provided debt financing which satisfies the following
conditions:
(a) such debt financing does not contain any covenants,
undertakings or representations on the part of any member of
the MGG Group which are any more onerous than those contained
in the Mezzanine Facility Agreement and does not contain any
events of default (however described) or other acceleration
provisions which are any more favourable to the Direct
Mezzanine Refinancing Providers than those set out in the
Mezzanine Facility Agreement;
(b) the cash pay interest rate applicable at any time to such debt
financing is not greater than 14% per annum;
(c) the principal amount of such debt financing does not mature
until at least the Final Maturity Date (as defined in the
Mezzanine Facility Agreement) and no amount of principal is
scheduled to be paid thereunder before the Final Maturity Date
(as defined in the Mezzanine Facility Agreement);
(d) if secured and/or guaranteed, such debt financing is only
secured and/or guaranteed by the same Security (or less) as
secured by the Security Documents and by the same entities as
the Guarantors (or certain of the Guarantors only) and, in the
case of any security, securing such debt financing does not
adversely affect the Security provided to the Finance Parties
and ranks behind such Security provided to the Finance
Parties;
(e) the principal amount of such debt financing is at no time
greater than the total amount outstanding under the Mezzanine
Facility Agreement at the time the first advances are made
under such Direct Mezzanine Refinancing plus costs directly
attributable to the refinancing;
(f) the net proceeds of such debt financing are immediately used
to prepay in full the total amount outstanding under the
Mezzanine Facility Agreement at the time such net proceeds are
advanced; and
(g) the Direct Mezzanine Refinancing Providers have entered into
an intercreditor agreement prior to any such debt financing
being advanced to MGG with all of the persons which are at
such time party to the Intercreditor Deed (other than the
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Mezzanine Finance Parties), such intercreditor agreement (the
"DIRECT MEZZANINE REFINANCING INTERCREDITOR AGREEMENT") (which
may take the form of an amendment to the Intercreditor Deed as
in effect at the relevant date) to be on terms no less
favourable to the Finance Parties than the Intercreditor Deed
(and the Finance Parties shall not unreasonably refuse to
enter into such an intercreditor agreement or to agree to
corresponding amendments to the Intercreditor Deed as in
effect at the relevant date).
"DIRECT MEZZANINE REFINANCING INTERCREDITOR AGREEMENT" has the meaning
given to it in the definition of Direct Mezzanine Refinancing.
"DIRECT MEZZANINE REFINANCING FACILITY" means a facility providing
Direct Mezzanine Refinancing.
"DIRECT MEZZANINE REFINANCING PROVIDERS" means the providers of any
Direct Mezzanine Refinancing including any agent or trustee for such
providers.
"DISPOSAL PLAN" means the disposal programme pursuant to which it is
intended that the shares in certain members of the MGG Group, certain
Unconsolidated Subsidiaries of MGG (as specified in Schedule 16
(DISPOSAL PLAN)) and/or the whole or substantially the whole of the
assets of such companies and certain minority interests and assets (as
specified in Schedule 16 (DISPOSAL PLAN)) of the MGG Group and such
Unconsolidated Subsidiaries of MGG will be sold after the Closing Date.
"DOLLAR FACILITIES" means the Term B Dollar Facility and the Term C
Dollar Facility.
"DOLLAR FACILITY LOAN" means a loan made or to be made under a Dollar
Facility or the principal amount outstanding for the time being of that
loan.
"EMPLOYEE PLAN" means an employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
a US Group Member or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"ENVIRONMENTAL CLAIM" means any written claim or any proceeding or
investigation by any person in respect of any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in
which any member of the Group conducts business which relates to the
pollution or protection of the environment or harm to or the protection
of human health or the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of any member of the Group conducted on or from the properties
owned or used by the relevant member of the Group.
"ERISA" means, at any date, the US Employee Retirement Income Security
Act of 1974, or any successor legislation thereto (as amended) and the
regulations promulgated and rulings issued thereunder, all as the same
shall be in effect at such date.
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"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), (c), (m) or (o) 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 4043(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);
(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; and
(d) 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 Loan in euro:
(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 Agent at its request quoted
by the Reference Banks to leading banks in the European
interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in euro for a period comparable to the Interest Period of the
relevant Loan and for these purposes in respect of the drawing of a Loan
to be advanced on the Closing Date EURIBOR for the first Interest Period
of such Loan shall be determined by reference to paragraph (b) and in
respect of the first Interest Period for the Deemed Loan referred to in
paragraph (d) of Clause 9.11 (VOLUNTARY PREPAYMENT OF TERM FACILITY
LOANS) EURIBOR shall be determined in accordance with the provisions of
such paragraph (d).
"EURO FACILITIES" means the Term B Euro Facility and the Term C Euro
Facility.
"EURO FACILITY LOAN" means a loan made or to be made under a Euro
Facility or the principal amount outstanding for the time being of that
loan.
"EXCESS CASH FLOW" has the meaning given to it in Clause 22.1 (FINANCIAL
DEFINITIONS).
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"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 24 (EVENTS OF DEFAULT).
"EXCHANGE NOTES" means any notes (other than High Yield Notes) issued
by Newco 2 or, subject to the proviso at the end of this definition,
any other person which satisfy the following conditions:
(a) any such note is issued by Newco 2 or such other person to a
Mezzanine Lender in exchange for that Mezzanine Lender
releasing all or any of its claims to repayment of Mezzanine
Outstandings (and cash and non-cash interest relating thereto)
under the Mezzanine Facility Agreement in accordance with
Clause 2.4 (EXCHANGE NOTES) of the Mezzanine Facility
Agreement;
(b) such notes are unsecured and are not guaranteed by any member
of the Newco 2 Group save that such notes may be secured by
Permitted Exchange Notes Security;
(c) the cash interest contracted to be paid on such notes does not
exceed 14% per annum at any time;
(d) such notes do not mature before the Final Maturity Date (as
defined in the Mezzanine Facility Agreement) and no amount of
principal is scheduled to be paid thereunder before the Final
Maturity Date (as defined in the Mezzanine Facility
Agreement);
(e) the terms of the Intra-Group Loan between Newco 2 (or such
other person issuing the notes) as lender and MGG (or, as the
case may be, Debtco) as borrower arising in connection with
the issue of any Exchange Notes by Newco 2 (or such other
person) as specified in paragraph (a) above (the "EXCHANGE
NOTES LOAN") are immediately governed by an Exchange Notes
Loan Agreement which is subordinated pursuant to the terms of
an Exchange Notes Subordination Agreement;
(f) any such notes are otherwise on terms and conditions which are
substantially consistent with the terms and conditions for
such notes as set out in Schedule 15 of the Mezzanine Facility
Agreement and are otherwise on terms and conditions which are
no more onerous for the issuer of such note than the terms of
the Mezzanine Facility Agreement are for MGG (or, as the case
may be, Debtco),
PROVIDED THAT if the issuer of any Exchange Notes is to be a person
other than Newco 2 then the written consent of the Majority Lenders must
be obtained prior to such person issuing any Exchange Notes, such
consent not to be unreasonably withheld and (for the avoidance of doubt)
such consent may be given subject to any changes to the provisions of
this Agreement or any other Finance Document which are designed to
provide the Finance Parties with similar protections in relation to the
consequences of the issue of any such Exchange Notes as are at that time
contained in such Finance Documents in relation to Newco 2 being the
proposed issuer of any Exchange Notes.
"EXCHANGE NOTES DOCUMENTS" means the Exchange Notes, any indentures and
registration rights agreement relating to the Exchange Notes, any
permitted guarantees provided in connection therewith, any Permitted
Exchange Notes Security and any fee letters, indemnity letters, purchase
agreements, refinancing and engagement letter relating to the Exchange
Notes and all other documents relating to the issue of the Exchange
Notes.
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"EXCHANGE NOTES LOAN" has the meaning ascribed to it in the definition
of Exchange Notes.
"EXCHANGE NOTES LOAN AGREEMENT" means a loan agreement in the form set
out in schedule 1 to the Exchange Notes Subordination Agreement between
Newco 2 (or (if different) the issuer of the Exchange Notes) as lender
and MGG (or, on the case may be, Debtco) as borrower which governs the
terms of any Exchange Notes Loan.
"EXCHANGE NOTES SUBORDINATION AGREEMENT" means a subordination agreement
in the agreed form between MGG (or, as the case may be, Debtco) and
Newco 2 (or (if different) the issuer of the Exchange Notes) relating to
the subordination of any Exchange Notes Loan to the Outstandings, the
Mezzanine Outstandings and amounts outstanding under the Hedging
Agreements in respect of the authorisation and execution of such
subordination agreement the Agent has received a legal opinion from its
German counsel in form and substance acceptable to it (acting
reasonably).
"EXISTING FACTORING PROGRAMME" means the factoring programme in place as
at the Closing Date made between MGG, Eureka Securitisation PLC and
Citibank, N.A. and entered into on 2/4 December 1998.
"EXISTING INDEBTEDNESS" means the Financial Indebtedness of the MGG
Group outstanding on the Closing Date.
"EXPIRY DATE" means, in relation to any Letter of Credit or Bank
Guarantee, the date on which the maximum aggregate liability under that
Letter of Credit or Bank Guarantee is to be reduced to zero.
"FACILITY" means the Term Disposal Facility, the Term A Facility, the
Term B Euro Facility, the Term B Dollar Facility, the Term C Euro
Facility, the Term C Dollar Facility, the Revolving Facility I or the
Revolving Facility II.
"FACILITY OFFICE" means the office or offices notified by a Lender or a
Fronting Bank to the Agent and the Obligor's 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 Business Days' written notice to the
Agent and the Obligor's Agent) as the office or offices through which it
will perform its obligations under this Agreement and (unless otherwise
subsequently notified by not less than five Business Days' written
notice to the Agent and the Obligor's Agent) the Facility Office of the
Lenders named on the signing pages hereto shall be the office or offices
specified after their names on the signature pages hereto.
"FAMILY MGG SHARES" means the shares representing one third of the
nominal value of the issued share capital of MGG, held by MIG at the
date of this Agreement.
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between certain of the Arrangers and MGG (or the Agent or
the Security Trustee and MGG, as the case may be) setting out any of the
fees referred to in Clause 13 (FEES) and any letter or letters between
any Fronting Bank and the Obligor's Agent setting out any of the fees
referred to in Clause 13.4 (FRONTING BANK FEE).
"FINAL MATURITY DATE" means the day which is 108 Months after the Base
Date.
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"FINANCE DISCLOSURE LETTER" means the letter (if any) from the Company
to the Agent dated prior to the Closing Date headed "Finance Disclosure
Letter" in the agreed form and initialled by each Arranger for the
purposes of identification pursuant to which certain specific issues are
disclosed against specific representations.
"FINANCE DOCUMENT" means this Agreement, any Fee Letter, the Syndication
Letter, each Letter of Credit, each Bank Guarantee, any Cash Collateral
Document, any Accession Letter, the Austrian Guarantee, the Security
Documents, the Intercreditor Deed, any Subordination Agreement, the
Hedging Agreements, any Priority Letter, any Transfer Certificate, the
Debtco Exit Transfer Certificate, and any other document designated as
such by the Agent and the Obligor's Agent.
"FINANCE PARTY" means the Agent, the Security Trustee, an Arranger, a
Fronting Bank, a Hedge Counterparty or a Lender.
"FINANCE LEASE" means a contract treated as a finance or capital lease
in accordance with IAS.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of any
of the following:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) any liability in respect of any Finance 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 including (for the avoidance of doubt
and without limitation) any amount raised by any member of the
MGG Group pursuant to a Permitted Factoring Programme;
(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
other than in the ordinary course of trade of any member of
the MGG Group;
(i) (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 (h) above.
"FINANCIAL QUARTER" has the meaning given to it in Clause 22.1
(FINANCIAL DEFINITIONS).
"FLOTATION" means a listing of all or any part of the share capital of
(a) MGG, (b) any Holding Company of MGG which is in the Group or (c) any
member of the MGG Group which directly
-15-
or indirectly owns all or substantially all of the shares or assets of
the MGG Group, in each case on any recognised investment or securities
exchange in any country.
"FRENCH GUARANTOR" means a Guarantor whose Relevant Jurisdiction is
France.
"FRONTING BANK" means a Lender which has notified the Agent that it has
agreed to the relevant Borrower's request to be a fronting bank for a
particular Bank Guarantee or Letter of Credit pursuant to the terms of
this Agreement.
"FUNDS FLOW STATEMENT" means the statement, in the agreed form, prepared
by the Company's advisors showing the payments to be made and received
by the Investors, the Company and certain other members of the Group and
the Vendor (and any of the Vendor's Affiliates) in relation to the
Acquisition.
"GERMAN GROUP MEMBER" means any member of the Newco 2 Group whose
Relevant Jurisdiction is the Federal Republic of Germany.
"GERMAN OBLIGOR" means a German Group Member who is an Obligor.
"▇▇▇▇▇▇▇ ▇▇▇▇▇ MANAGED FUNDS" means GS Capital Partners 2000, L.P., GS
Capital Partners 2000 Employee Fund, L.P., GS Capital Partners 2000
Offshore, L.P., GS Capital Partners 2000 GmbH & Co. Beteiligungs KG,
Stone Street Fund 2000, L.P. and Bridge Street Special Opportunities
Fund 2000, L.P. together with all funds managed, advised or operated by
any Affiliate of The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc.
"GROUP" means, at any time, the Company and its Consolidated
Subsidiaries at that time save that if at any time after the Closing
Date Newco 2 ceases to be a Subsidiary of the Company, the "Group"
shall, until such time as Newco 2 becomes a Subsidiary of the Company
again, be the Newco 2 Group.
"GROUP STRUCTURE CHART" means a group structure chart, in agreed form,
showing:
(a) all members of the Group (assuming completion of the
Acquisition) and the Investors;
(b) any person in which any Group member has (or members of the
Group together have) an interest of more than 20% in the
issued share capital or equivalent ownership interest of such
person;
(c) the jurisdiction of incorporation or establishment of each
person within (a) and (b) above (other than the Investors);
and
(d) that all members of the Group are wholly-owned Subsidiaries of
the Company or, if any members of the Group are not
wholly-owned Subsidiaries of the Company, specifying the
percentage shareholding or other economic interest which the
Company (directly or indirectly) holds in such members of the
Group.
"GUARANTEE AMOUNT" means:
(a) each sum paid or due and payable by a Fronting Bank to the
beneficiary of a Bank Guarantee pursuant to the terms of that
Bank Guarantee; and
-16-
(b) all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from a
Fronting Bank under a Bank Guarantee), claims, losses and
expenses which that Fronting Bank incurs or sustains in
connection with a Bank Guarantee,
in each case which has not been reimbursed pursuant to Clause 8.2
(BORROWER'S INDEMNITY TO FRONTING BANKS).
"GUARANTEE COMMISSION PERIOD" means, save as otherwise provided in this
Agreement, any of those periods mentioned in Clause 13.3 (BANK GUARANTEE
COMMISSION).
"GUARANTEE COMMISSION RATE" means, from time to time, a guarantee
commission equal to the Margin applicable to Revolving Facility Loans at
that time.
"GUARANTEE PROPORTION" means, in respect of any Bank Guarantee under any
Revolving Facility and save as otherwise provided in this Agreement, the
proportion (expressed as a percentage) borne by a Lender's Available
Commitment in respect of that Revolving Facility to the Available
Facility in respect of that Revolving Facility immediately prior to the
issue of that Bank Guarantee.
"GUARANTOR" means an Additional Guarantor (including, for the avoidance
of any doubt, any Initial Guarantor which is an Additional Guarantor),
unless it has ceased to be a Guarantor in accordance with Clause 26
(CHANGES TO THE OBLIGORS).
"HEDGE COUNTERPARTY" means a Lender or an Affiliate of a Lender or any
other person which in each case is either a party to the Intercreditor
Deed or has acceded to the Intercreditor Deed in accordance with its
terms as a Hedge Counterparty.
"HEDGING AGREEMENTS" means each of the agreements entered into or to be
entered into between the Borrowers approved by the Agent and Hedge
Counterparties for the purpose of hedging interest rate liabilities in
accordance with Clause 23.29 (HEDGING) or Clause 21.29 of the Mezzanine
Facility Agreement.
"HEDGING LETTER" means the letter dated on or about the date of this
Agreement from MGG to the Arrangers and the Mezzanine Arrangers, setting
out the interest rate hedging requirements to be implemented by the MGG
Group.
"HIGH YIELD DOCUMENTS" means the High Yield Notes, any indentures and
registration rights agreement relating to the High Yield Notes, any
permitted guarantees provided in connection therewith, any Permitted
High Yield Security, any future paid-in-kind notes contemplated by such
indentures and registration rights agreement and any fee letters,
indemnity letters, purchase agreements, refinancing and engagement
letter relating to the High Yield Notes and all other documents relating
to the issue of the High Yield Notes.
"HIGH YIELD NOTES" means any notes (other than Exchange Notes) issued by
Newco 2 or, subject to the proviso at the end of this definition, any
other person which either:
(a) satisfy the following conditions:
-17-
(i) the aggregate gross proceeds of such notes do not
exceed the total amount outstanding under the
Mezzanine Facility Agreement at the time such gross
proceeds are advanced (or its equivalent in other
currencies);
(ii) such notes are unsecured and are not guaranteed by
any member of the Newco 2 Group save that such notes
may be secured by the Permitted High Yield Security;
(iii) the cash interest contracted to be paid on such notes
does not exceed 15% per annum;
(iv) such notes do not mature before the Final Maturity
Date (as defined in the Mezzanine Facility Agreement)
and no amount of principal is scheduled to be paid
thereunder before the Final Maturity Date (as defined
in the Mezzanine Facility Agreement);
(v) the gross proceeds of such notes are immediately
either (1) used to make a High Yield Proceeds Loan
(which is subject to the terms of the High Yield
Subordination Agreement) and prepay in full the total
amount outstanding under the Mezzanine Facility
Agreement at the time such gross proceeds are
advanced or (2) are held in an escrow account with
the bond trustee of the indenture relating to such
High Yield Notes or another appropriate third party
on terms that such proceeds are either released to
Newco 2 upon confirmation from the relevant German
court that the registration of the share capital
increase of Newco 2 has been effected so that the
contribution of the Family MGG Shares to Newco 2 is
effective (and are then applied by Newco 2
immediately to repay the Mezzanine Facility Agreement
in the manner set out in sub-paragraph (1) of this
paragraph (v)) or are repaid to the holders of the
High Yield Notes if such confirmation is not received
within 120 days of the proceeds being paid into such
escrow account; or
(b) are on terms and conditions which have been approved in
writing by the Majority Lenders (acting reasonably and having
regard to the then current market practice (if any) in the
high yield bond market for the financing of leveraged
acquisitions in Europe); or
(c) are notes which are issued in exchange, renewal or replacement
or extension of any of the notes which satisfy the provisions
of paragraph (a) or (b) above for the same or smaller amount,
PROVIDED THAT:
(A) if the issuer of any High Yield Notes is to be a person other
than Newco 2 then the written consent of the Majority Lenders
must be obtained prior to such person issuing any High Yield
Notes, such consent not to be unreasonably withheld and (for
the avoidance of doubt) such consent may be given subject to
any changes to the provisions of this Agreement or any other
Finance Document which are designed to provide the Finance
Parties with similar protections in relation to the
consequences of the issue of any such High Yield Notes as are
at that time contained in such Finance
-18-
Documents in relation to Newco 2 being the proposed issuer of
any High Yield Notes; and
(B) the aggregate gross proceeds of such notes may exceed the
amount specified in (a)(i) above by EUR 150,000,000 (the
"ADDITIONAL AMOUNT") if such Additional Amount is immediately
used to make a High Yield Proceeds Loan (which is subject to
the terms of the High Yield Subordination Agreement) and EUR
115,000,000 of such Additional Amount used to make such High
Yield Proceeds Loan is immediately used to prepay the
Facilities in the manner specified in paragraph (d) of Clause
9.11 (VOLUNTARY PREPAYMENT OF TERM FACILITY LOANS).
"HIGH YIELD PROCEEDS LOAN" means any loan of the proceeds from the issue
of the High Yield Notes, to be made by Newco 2 to MGG, in each case
pursuant to a High Yield Proceeds Loan Agreement and is subordinated
pursuant to the terms of a High Yield Subordination Agreement.
"HIGH YIELD PROCEEDS LOAN AGREEMENT" means a loan agreement
substantially in the form set out in schedule 1 of the High Yield
Subordination Agreement between Newco 2 as lender and MGG as borrower
pursuant to which any High Yield Proceeds Loan is to be made.
"HIGH YIELD SUBORDINATION AGREEMENT" means a subordination agreement
substantially in the agreed form between MGG and Newco 2 relating to the
subordination of any High Yield Proceeds Loan to the Outstandings and
amounts outstanding under the Hedging Agreements in respect of the
authorisation and execution of such subordination agreement the Agent
has received a legal opinion from its German counsel in form and
substance acceptable to it (acting reasonably).
"HOECHST NEWCO 2 RECEIVABLE" means the loan deemed to be made by the
Vendor to Newco 2 in the amount of EUR200,000,000 pursuant to the terms
of section 2.4 of the BCA (and defined therein as the Hoechst Newco 2
Receivable) which loan constitutes part of the consideration received by
the Vendor for it contributing the Vendor MGG Shares to Newco 2, with
the Vendor's rights in relation to such loan to be transferred and
assigned to the Company pursuant to an assignment contract substantially
as set forth in Exhibit 2.7(b) of the BCA on the Closing Date in
accordance with section 2.7(b) of the BCA.
"HOECHST NEWCO 3" means DIOGENES Zwanzigste Vermogensverwaltungs GmbH,
being a newly incorporated German limited liability company registered
with the commercial register of Frankfurt am Main under HR B 48032
which:
(a) is a wholly-owned Subsidiary of Hoechst Aktiengesellschaft;
(b) pursuant to a restructuring to be carried out by the Vendor
prior to the Closing Date, will be the sole shareholder of
Newco 2; and
(c) pursuant to the terms of the Business Combination Agreement,
will sell the entire issued share capital of Newco 2 to the
Company.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
-19-
"HOLDING OPERATING COMPANIES" means Air Gas Production Limited, ▇▇▇▇▇▇
Cryotherm GmbH & Co. KG, ▇▇▇▇ Gas Dettmannsdorf GmbH and
Sauerstoffvertrieb ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH & Co. KG.
"IAS" means International Accounting Standards in effect from time to
time.
"INDEBTEDNESS FOR BORROWED MONEY" means Financial Indebtedness save for
any indebtedness for or in respect of paragraphs (g) and (h) of the
definition of "FINANCIAL INDEBTEDNESS".
"INDEMNIFIED UNCONSOLIDATED DEBT" means, at any time, the aggregate
amount of Unconsolidated Debt to the extent to which the member of the
MGG Group providing the Unconsolidated Debt is fully indemnified at such
time by the Vendor and/or Aventis either pursuant to the provisions of
section 11.1 (HOECHST UNDERTAKINGS) and/or section 11.2 (AVENTIS
GUARANTEE) of the Singapore Separation Agreement or pursuant to any
other agreement acceptable to the Majority Lenders (acting reasonably).
"INFORMATION MEMORANDUM" means the information memorandum concerning the
Company and the MGG Group which, at the Company's and/or MGG's request
and on its/their behalf, is to be prepared in relation to this
transaction, agreed between the Bookrunners and MGG, approved by the
Company and/or MGG and distributed by the Bookrunners prior to the last
Syndication Date to selected financial institutions in connection with
the syndication of the Facilities.
"INITIAL BORROWERS" means the members of the Group listed in Part I of
Schedule 1 (THE CLOSING PARTIES) as initial borrowers.
"INITIAL GERMAN BORROWERS" means each of the Initial Borrowers whose
Relevant Jurisdiction is Germany.
"INITIAL GUARANTORS" means the members of the Group listed in Part I of
Schedule 1 (THE CLOSING PARTIES) as initial guarantors.
"INITIAL MARGIN" means:
(a) in relation to the Term Disposal Facility, 2.25 per cent. per
annum;
(b) in relation to the Term A Facility, 2.25 per cent. per annum;
(c) in relation to the Term B Facilities, 2.75 per cent. per
annum;
(d) in relation to the Term C Facilities, 3.50 per cent. per
annum; and
(e) in relation to each Revolving Facility, 2.25 per cent. per
annum.
"INITIAL OBLIGORS" means the Initial Borrowers and the Initial
Guarantors.
"INITIAL SPONSORS" means Allianz Capital Partners GmbH and GS Capital
Partners 2000, L.P., GS Capital Partners 2000 Employee Fund, L.P., GS
Capital Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH & Co
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, L.P. and Bridge Street Special
Opportunities Fund 2000, L.P.
-20-
"INSURANCE PROCEEDS" means the cash proceeds of any insurance claim
intended to compensate for damage to any asset (but not for loss of
profit) 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) in respect
thereof or in respect of the remittance or transfer of all or
any of such proceeds to another member of the Group in order
to enable any such proceeds to be utilised in prepayment of
outstanding Loans pursuant to the requirements of Clause 9.6
(INSURANCE PROCEEDS).
For the purposes of this definition, the term "GROUP" shall at all times
include the Company.
"INTELLECTUAL PROPERTY" means any and all rights and interests existing
now or in the future in any part of the world in or relating to
registered and unregistered trade marks and service marks, domain names,
patents, registered designs, utility models, trade names, business
names, titles, registered or unregistered copyrights in published and
unpublished works, unregistered designs, inventions registered or
unregistered, data base rights, know-how, any other intellectual
property rights and any applications for any of the foregoing and any
goodwill therein.
"INTELLECTUAL PROPERTY RIGHTS" means any Intellectual Property owned by
any member of the Group.
"INTERCREDITOR DEED" means:
(a) in relation to the Mezzanine Facility, the intercreditor deed
to be entered into in the agreed form between, among others,
the Obligors, the Finance Parties and the Mezzanine Finance
Parties; and
(b) in relation to any Direct Mezzanine Refinancing, the Direct
Mezzanine Refinancing Intercreditor Agreement.
"INTEREST PERIOD" means, in relation to a Loan, each period determined
in accordance with Clause 11 (INTEREST PERIODS AND TERMS) and, in
relation to an Unpaid Sum, each period determined in accordance with
Clause 10.6 (DEFAULT INTEREST).
"INTRA-GROUP LOAN" means any loan between members of the Newco 2 Group.
"INVESTORS" means the Initial Sponsors and MIG.
"IRS" means the United States Internal Revenue Service or any successor
thereto.
"JOINT VENTURE" means any joint venture entity, whether a company,
unincorporated firm, undertaking, association, joint venture or
partnership or any other entity, but in any event an entity will not be
a Joint Venture in relation to any member of the MGG Group if that
entity is a member of the MGG Group or is an Unconsolidated Subsidiary
of Newco 2 and will not be a
-21-
Joint Venture in relation to any member of the MGG Group unless that
member of the MGG Group has (or, together with other members of the
MGG Group, have) an interest of more than 20% in the issued share
capital or equivalent ownership interest of such entity.
"KPMG BUSINESS PLAN AUDIT" mans the audit of the Business Plan carried
out by KPMG in the agreed form.
"L/C AMOUNT" means:
(a) each sum paid or due and payable by a Fronting Bank to the
beneficiary of a Letter of Credit pursuant to the terms of
that Letter of Credit; and
(b) all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from a
Fronting Bank under a Letter of Credit), claims, losses and
expenses which that Fronting Bank incurs or sustains in
connection with a Letter of Credit,
in each case which has not been reimbursed pursuant to Clause 8.2
(BORROWER'S INDEMNITY TO FRONTING BANKS).
"L/C COMMISSION PERIOD" means, save as otherwise provided in this
Agreement, any of those periods mentioned in Clause 13.2 (LETTER OF
CREDIT COMMISSION).
"L/C COMMISSION RATE" means, from time to time, a letter of credit
commission equal to the Margin applicable to Revolving Facility Loans at
that time.
"L/C PROPORTION" means, in respect of any Letter of Credit under any
Revolving Facility and save as otherwise provided in this Agreement, the
proportion (expressed as a percentage) borne by a Lender's Available
Commitment in respect of that Revolving Facility to the Available
Facility in respect of that Revolving Facility immediately prior to the
issue of that Letter of Credit.
"LEGAL REPORTS" means:
(a) the legal due diligence report, in the agreed form, on certain
members of the MGG Group prepared by Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇;
(b) the legal due diligence report, in the agreed form, on certain
members of the MGG Group prepared by Hengeler ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇; and
(c) the legal due diligence report, in the agreed form, on certain
members of the MGG Group prepared by ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇.
"LENDER" means:
(a) any Original Lender; and
(b) any person 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.
-22-
"LETTER OF CREDIT" means a letter of credit issued or to be issued by a
Fronting Bank under a Revolving Facility substantially in the form set
out in Schedule 12 (FORM OF LETTER OF CREDIT) or in such other form
requested by a Borrower which is acceptable to the Agent and the
relevant Fronting Bank.
"LEVERAGE RATIO" means, in respect of any period, the ratio of Total
Debt as at the last day of such period to EBITDA for that period, as
determined in accordance with the provisions of Clause 22 (FINANCIAL
COVENANTS).
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at
its request quoted by the Reference Banks to leading banks in
the 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 and for these purposes in respect of the
drawing of a Loan to be advanced on the Closing Date LIBOR for the first
Interest Period of such Loan shall be determined by reference to
paragraph (b).
"LMA" means the Loan Market Association.
"LOAN" means a Term Disposal Facility Loan, a Term A Facility Loan, a
Term B Euro Facility Loan, a Term B Dollar Facility Loan, a Term C Euro
Facility Loan, a Term C Dollar Facility Loan, a Revolving Facility I
Loan or a Revolving Facility II Loan or (for the avoidance of any
doubt), a Rollover Loan.
"LUXEMBOURG OBLIGOR" means any Obligor whose Relevant Jurisdiction is
Luxembourg.
"MAJORITY LENDERS" means 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) (and in order to
calculate the Majority Lenders on the basis of Total Commitments at any
time the amount in dollars of all Term B Dollar Facility Commitments and
all Term C Dollar Facility Commitments and all Term Disposal Facility
Commitments shall be calculated in euros at the Agent's Spot Rate of
Exchange on the date of this Agreement).
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (MANDATORY COST FORMULAE).
"MARGIN" means:
(a) in respect of all Term Disposal Facility Loans, the Initial
Margin for the Term Disposal Facility;
(b) in respect of all Term A Facility Loans and Revolving Facility
Loans, the percentage rate per annum determined in accordance
with paragraph (a) of Clause 10.2 (MARGIN RATCHETS), Clause
10.3 (MARGIN CHANGES) and Clause 10.4 (DEFAULT MARGIN);
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(c) in respect of all Term B Euro Facility Loans and all Term B
Dollar Facility Loans, the percentage rate per annum
determined in accordance with paragraph (b) of Clause 10.2
(MARGIN RATCHETS), Clause 10.3 (MARGIN CHANGES) and Clause
10.4 (DEFAULT MARGIN);
(d) in respect of all Term C Dollar Facility Loans and all Term C
Euro Facility Loans, the Initial Margin for the Term C
Facilities.
"MARGIN STOCK" means margin stock or "MARGIN SECURITY" within the
meaning of Regulations T, U and X.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the business, operations, property or condition (financial or
otherwise) of the Group taken as a whole;
(b) the ability of the Obligors to perform their respective
payment obligations under the Finance Documents or the ability
of the Obligor's Agent to perform its obligations under Clause
22.2 (FINANCIAL CONDITION); or
(c) the validity or enforceability of the Finance Documents or the
rights or remedies of any Finance Party under the Finance
Documents in a manner or to an extent which the Majority
Lenders reasonably consider to be materially prejudicial to
the interests of any Finance Party under the Finance
Documents.
"MATERIAL COMPANY" means, at any time:
(a) a Subsidiary of Newco 2 which is listed in Schedule 13
(MATERIAL COMPANIES AS AT SIGNING) (PROVIDED THAT if after the
Closing Date any Subsidiary listed in such Schedule would not,
but for this paragraph (a), be a Material Company, it shall
not be a Material Company); and/or
(b) a Consolidated Subsidiary of Newco 2 which has EBITDA
representing 3 per cent. or more of EBITDA of the Newco 2
Group; and/or
(c) a Consolidated Subsidiary of Newco 2 which has gross assets
(excluding assets which are not included on consolidation)
representing 3 per cent. or more of gross assets of the Newco
2 Group; and/or
(d) Newco 2 and each member of the Newco 2 Group which is a
Holding Company of a Subsidiary falling within paragraph (a),
(b) or (c) above,
in each case calculated on a consolidated basis.
Whether a person is a Material Company within the conditions set out in
paragraphs (b) and (c) shall be determined by reference to the most
recent Compliance Certificate and/or Auditor's Report supplied by the
Obligor's Agent and/or the latest audited financial statements of that
Consolidated Subsidiary of Newco 2 (which statements shall, if
customarily prepared or required by applicable law to be, be
consolidated in the case of a Consolidated Subsidiary of Newco 2 which
itself has Consolidated Subsidiaries of Newco 2) and/or the latest
audited consolidated financial statements of the Newco 2 Group. If a
Consolidated Subsidiary of
-24-
Newco 2 has been acquired since the date as at which the latest audited
consolidated financial statements of the Newco 2 Group were prepared,
the financial statements shall be notionally adjusted, for the purpose
of the calculation, in order to take into account the acquisition of
that Consolidated Subsidiary (that adjustment being certified by the
Newco 2 Group's auditors), it being acknowledged that the auditors of
Newco 2 are entitled to rely on information regarding such acquired
Consolidated Subsidiary provided to them by the management or auditors
of such acquired Consolidated Subsidiary for the purpose of this
calculation and that if the auditors of Newco 2 certify that on the
basis of such information they are of the opinion that the gross assets
(excluding assets which are not included on consolidation) and EBITDA
of such acquired Consolidated Subsidiary will be less than 3% of the
gross assets and EBITDA of the Newco 2 Group the notional adjustment
will not be required for that acquired Consolidated Subsidiary.
A report by the auditors of Newco 2 that a Consolidated Subsidiary of
Newco 2, for the purpose of the calculation is or is not a Material
Company shall, in the absence of manifest error, be conclusive and
binding on all Parties.
"▇▇▇▇▇▇ SINGAPORE" means ▇▇▇▇▇▇ Singapore Pte. Limited, a company
incorporated in Singapore and which as at the date hereof is a direct
wholly-owned Subsidiary of MGG.
"MEZZANINE AGENT" means the Mezzanine Agent (as defined in the Mezzanine
Facility Agreement).
"MEZZANINE ARRANGERS" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, Bayerische
Hypo-und Vereinsbank AG and The Royal Bank of Scotland plc.
"MEZZANINE FACILITY" means the mezzanine loan facilities made under the
Mezzanine Facility Agreement.
"MEZZANINE FACILITY AGREEMENT" means the mezzanine facility agreement
dated on or about the date of this Agreement and made between (among
others) the Company, the Mezzanine Agent, the Mezzanine Arrangers, the
Security Trustee and the banks and financial institutions named therein
as Mezzanine Lenders, setting out the terms and conditions on which the
Mezzanine Outstandings will be made available to MGG.
"MEZZANINE FEE LETTER" means any letter or letters dated on or about the
date of the Mezzanine Facility Agreement between certain of the
Mezzanine Arrangers and the Company (or the Mezzanine Agent or the
Security Trustee and the Company) setting out any of the fees referred
to in clause 11 of the Mezzanine Facility Agreement.
"MEZZANINE FINANCE DOCUMENTS" means the Mezzanine Facility Agreement,
any guarantor or borrower accession memoranda under the Mezzanine
Facility Agreement, the Security Documents, the Intercreditor Deed, any
Priority Letter, the Austrian Guarantee, any Mezzanine Fee Letter, the
Mezzanine Syndication Letter, any Transfer Certificate (as defined in
the Mezzanine Facility Agreement) other than any such Transfer
Certificate to which Newco 2 is a party, and any other document
designated as such by the Mezzanine Agent and the Obligor's Agent
excluding the Exchange Notes and the Exchange Notes Loan Agreement.
"MEZZANINE FINANCE PARTIES" means the Mezzanine Lenders (excluding for
the avoidance of doubt Newco 2), the Mezzanine Agent, the Mezzanine
Arrangers and the Security Trustee.
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"MEZZANINE LENDERS" means the "MEZZANINE LENDERS" as defined in the
Mezzanine Facility Agreement.
"MEZZANINE OUTSTANDINGS" means the aggregate amount outstanding at any
time in respect of principal under the Mezzanine Facility Agreement (not
including, for the avoidance of any doubt, any amounts outstanding under
the Exchange Notes Loan Agreement).
"MEZZANINE SYNDICATION LETTER" means the "MEZZANINE SYNDICATION LETTER"
as defined in the Mezzanine Facility Agreement.
"MGG" means ▇▇▇▇▇▇ Griesheim GmbH, registered in the HANDELSREGISTER
(commercial register) of the AMTSGERICHT (local court) of Frankfurt am
Main under HRB 7812.
"MGG ACQUISITION" means the acquisition by the Company of the issued
share capital of Newco 2 pursuant to the terms of the Business
Combination Agreement.
"MGG GROUP" means, at any time, MGG and its Consolidated Subsidiaries at
that time PROVIDED THAT at any time during the Debtco Structure Period
it shall mean Debtco and its Consolidated Subsidiaries at that time.
"MGG JOINT VENTURE" means a Joint Venture in which a member of the MGG
Group has an interest.
"MGG PERMITTED DISTRIBUTIONS" means each of the following:
(a) dividends paid by MGG to Newco 2;
(b) payments of any amounts by MGG to Newco 2 in respect of any
indebtedness under any Newco 2 Loan Agreement;
(c) loans made by MGG to Newco 2; and
(d) payments by MGG to any Holding Company of MGG to the extent
necessary to reimburse such Holding Company for any German
trade tax liability or any German VAT liability which, in
either case, is payable by such Holding Company but which is
attributable to the business activities of MGG or which is
caused by Newco 2 on-lending the proceeds of any Refinancing
Note to MGG or Debtco, or by any Finance Document, any
Mezzanine Finance Document, any document executed in respect
of a Direct Mezzanine Refinancing or by Newco 2 issuing any
Refinancing Note,
PROVIDED THAT at the time any such dividend or payment is paid or loan
is advanced to Newco 2 (other than (1) pursuant to paragraph (d) or (2)
during the Debtco Structure Period) all of the following conditions are
satisfied:
(A) the Term Disposal Facility has been repaid in full and the
conditions specified in Clause 23.38 (TOTAL DEBT RELIEF
AMOUNT) have been met;
(B) there is no Default which is continuing; and
(C) the amount of any such dividend, payment or loan when
aggregated with all other dividends, payments or loans
referred to in (a), (b) and (c) above made in the calendar
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year in which such dividend, payment or loan is proposed to be
made would not exceed EUR7,500,000 or its equivalent.
"MIG" means ▇▇▇▇▇▇ Industriegesellschaft mbH, registered in the
HANDELSREGISTER (commercial register) of the AMTSGERICHT (Local Court)
of Konigstein am Taunus under HRB 1033.
"MIG POWER OF ATTORNEY" means each power of attorney from MIG delivered
pursuant to paragraph 5 of Part I of Schedule 2 (CONDITIONS PRECEDENT).
"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) in relation to determining the last day of an Interest Period,
if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest
Period is to end.
The above rules will only apply to the last Month of any period.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" (as defined in Section
4001(a)(3) in ERISA) maintained or contributed to for employees of a US
Group Member or any ERISA Affiliate.
"NET DISPOSAL PROCEEDS" means in relation to a disposal of an asset, the
gross total proceeds of such disposal received by the member of the
Group concerned in cash less:
(a) reasonable fees, commissions and other out of pocket expenses
of the Group incurred due to the disposal;
(b) the VAT or similar Tax paid or reasonably estimated to be
payable by any member of the Group due to such disposal;
(c) any income, capital gains or other Taxes incurred and required
to be paid or reasonably estimated to be payable by any member
of the Group in connection with (i) such disposal or (ii) the
remittance or transfer of all or any of such proceeds to
another member of the Group in order to enable any such
proceeds to be utilised in prepayment of the Facilities
pursuant to the requirements of Clause 9.5 (ASSET DISPOSALS),
in each case as reasonably determined in good faith by such
member of the Group on the basis of the existing tax rates
applicable to the gain (if any) and after taking into account
all available credits, deductions and allowances connected
with such disposal;
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(d) that part of the gross total proceeds which is equal to the
amount (if any) of additional investment made by any member of
the MGG Group in the entity whose shares or assets have been
disposed of, where such additional investment was made after
the Closing Date; and
(e) that part of the gross total proceeds of any disposal which is
immediately upon such disposal occurring applied in repaying
Indebtedness for Borrowed Money of the member of the Group
making such disposal.
For the purposes of this definition, the term "GROUP" shall at all times
include the Company.
"NEWCO 2" means DIOGENES Vierte Vermogensverwaltungs Aktiengesellschaft,
a newly incorporated German stock corporation registered in the
HANDELREGISTER (commercial register) of the AMTSGERICHT (local court) of
Frankfurt am Main under HR B 42291 (whose name it is anticipated will be
changed to ▇▇▇▇▇▇ Griesheim Holding AG) which:
(a) pursuant to a restructuring to be carried out by the Vendor
prior to the Closing Date, will be the holder of the Vendor
MGG Shares except during the Debtco Structure Period (when it
will be the holder of all the shares in Debtco); and
(b) pursuant to the terms of the Shareholders' Agreement, will be
(immediately following the Closing Date) the holder of the
Family MGG Shares except during the Debtco Structure Period
(when it will be the holder of all the shares in Debtco).
"NEWCO 2 GROUP" means, at any time, Newco 2 and its Consolidated
Subsidiaries at that time.
"NEWCO 2 LOAN" means any loan from Newco 2 to MGG or Debtco (other than
a High Yield Proceeds Loan and an Exchange Notes Loan) which is made
pursuant to a Newco 2 Loan Agreement and is subordinated pursuant to the
terms of a Newco 2 Loan Subordination Agreement.
"NEWCO 2 LOAN AGREEMENT" means a loan agreement entered into between
Newco 2 as lender and MGG or (as the case may be) Debtco as borrower
governing the terms of any Newco 2 Loan, such loan agreement to be in
the form set out in schedule 1 of the Newco 2 Loan Subordination
Agreement.
"NEWCO 2 LOAN SUBORDINATION AGREEMENT" means a subordination agreement
in the agreed form between MGG or Debtco (as the case may be) and Newco
2 relating to the subordination of the claims of Newco 2 under any Newco
2 Loan to the Outstandings, amounts outstanding under the Hedging
Agreements and the Mezzanine Outstandings in respect of which the Agent
has received a legal opinion from its German counsel in form and
substance satisfactory to it (acting reasonably).
"NEWCO 2 RECEIVABLE" means the Hoechst Newco 2 Receivable.
"NON-INDEMNIFIED UNCONSOLIDATED DEBT" means, at any time, Unconsolidated
Debt which is not Indemnified Unconsolidated Debt at such time.
"NON WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of MGG which is not a
wholly-owned Subsidiary of MGG provided that at all times during which
MGG owns directly or indirectly at least 70% of the issued and voting
share capital of MG OdraGas Spol s.r.o. (whose Relevant
-28-
Jurisdiction is the Czech Republic) (the "CZECH ENTITY") then the
Czech Entity shall be deemed to be a wholly-owned Subsidiary of MGG.
"OBLIGOR" means a Borrower or a Guarantor.
"OBLIGOR'S AGENT" means:
(a) until MGG becomes a Party, the Company;
(b) at all times after MGG has become a Party (other than during
the Debtco Structure Period), MGG; and
(c) at all times during the Debtco Structure Period, Debtco.
"OECD COUNTRY" means any country for the time being a member of the
Organisation for Economic Co-operation and Development.
"OPTIONAL CURRENCY" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.3 (CONDITIONS
RELATING TO OPTIONAL CURRENCIES AND THE EURO UNIT).
"ORIGINAL FINANCIAL STATEMENTS" means the audited consolidated financial
statements of the MGG Group for the financial year ended 31 December
2000.
"OUTSTANDINGS" means at any time, the aggregate of the Base Currency
Amounts of the outstanding Loans and the amount of the maximum actual
and contingent liabilities of the Lenders in respect of each outstanding
Letter of Credit and Bank Guarantee.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Union relating to
European Monetary Union.
"PARTY" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"PBGC" means the US Pension Benefit Guaranty Corporation, or any entity
succeeding to all or any of its functions under ERISA.
"PERMITTED ACQUISITIONS" means:
(a) acquisitions of Cash Equivalent Investments;
(b) acquisitions of any assets by a Holding Company of MGG from a
Holding Company of MGG;
(c) acquisitions of assets by a member of the MGG Group from
another member of the MGG Group;
(d) acquisitions (including the China Acquisition) expressly
contemplated in the Business Combination Agreement (excluding
all of its schedules, exhibits and attachments) and/or the
Ancillary Agreements (as defined therein) in the manner and at
the time and subject to the terms and circumstances set out in
the Business Combination
-29-
Agreement (excluding all of its schedules, exhibits and
attachments) and/or the Ancillary Agreements (as defined
therein);
(e) acquisitions comprising the purchase, subscription for, or
other acquisition of any new shares or other equity investment
in any member of the MGG Group (the "RELEVANT ENTITY") by
another member of the MGG Group PROVIDED THAT:
(i) if Security has been given to the Security Trustee or
the Finance Parties over any of the existing shares in
the Relevant Entity, equivalent Security is provided as
soon as reasonably practicable over the new shares or
equity investment in favour of either the Security
Trustee or the Finance Parties; and
(ii) if such acquisition is in shares or other equity
investments in a Non Wholly-Owned Subsidiary, the
requirements of Clause 23.7 (JOINT VENTURES AND NON
WHOLLY-OWNED SUBSIDIARIES) would be complied with;
(f) acquisitions comprising the purchase, subscription for, or the
acquisition of any shares or other equity investment in any
Joint Venture or Unconsolidated Subsidiary of Newco 2 PROVIDED
THAT the requirements of Clause 23.7 (JOINT VENTURES AND NON
WHOLLY-OWNED SUBSIDIARIES) would be complied with;
(g) acquisitions comprising the purchase, subscription for, or the
acquisition of any shares or other equity investment in any
Joint Venture or Unconsolidated Subsidiary of Newco 2 pursuant
to binding arrangements which were existing prior to the
Closing Date;
(h) subject to the proviso below acquisitions of any assets not
otherwise included in other paragraphs of this definition and
not made in the ordinary course of business and which are not
Permitted Capital Expenditure at any time in an amount up to
the Additional Basket at such time;
(i) the acquisition by the Company of any Holding Operating
Company for fair market value;
(j) acquisitions of Comparable Assets (as defined in paragraph (e)
of the definition of Permitted Disposals) in the circumstances
permitted in paragraph (e) of the definition of Permitted
Disposals; and
(k) acquisitions which are not in the ordinary course of business
and which are not Permitted Capital Expenditure and which do
not fall within paragraphs (a) to (j) above where the total
consideration (both cash and non-cash, including the amount of
indebtedness assumed by the purchaser or remaining in the
assets acquired and the amount of any deferred purchase price)
for such acquisitions in aggregate from the date of this
Agreement does not exceed (if such acquisition is made prior
to the Relevant Debt Relief Amount being at least
EUR255,000,000 (or its equivalent in other currencies) and the
Term Disposal Facility being repaid in full) EUR75,000,000 (or
its equivalent in another currency or currencies) or (if such
acquisition is made after the Relevant Debt Relief Amount has
exceeded EUR255,000,000 (or its equivalent in other
currencies) and the Term Disposal Facility has been repaid in
full) EUR250,000,000 (or its equivalent in other currencies),
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provided that in the case of any acquisition falling within paragraph
(h) or (k) above at the time of such acquisition the following
conditions are satisfied:
(A) there is no Default which is continuing; and
(B) if the amount of the consideration for the acquisition
(calculated as in paragraph (k) above) is greater than
EUR10,000,000 (or its equivalent in other currencies), the
Obligor's Agent has supplied to the Agent a certificate signed
by any of its Prokurists, supported by accompanying
calculations, demonstrating that if the EBITDA of or
attributable to those assets, and the debt to be added to the
consolidated balance sheet of the Newco 2 Group as a result of
the acquisition, were included, on a pro forma basis, in the
calculation of the Leverage Ratio as at the last Quarter Date
in respect of which financial statements have been delivered
pursuant to Clause 21.1 (FINANCIAL STATEMENTS), the
requirements of paragraph (d) of Clause 22.2 (FINANCIAL
CONDITION) would have been satisfied.
"PERMITTED CAPITAL EXPENDITURE" means any Capital Expenditure permitted
to be made pursuant to the provisions of Clause 22.3 (CAPITAL
EXPENDITURE).
"PERMITTED DISPOSALS" means:
(a) disposals of assets by any member of the Group in its ordinary
course of trading;
(b) disposals:
(i) of assets (but not shares in MGG) by a Holding
Company of MGG (other than Debtco) to another Holding
Company of MGG (other than Debtco);
(ii) of assets by a member of the MGG Group to another
member of the MGG Group;
(c) disposals for cash 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;
(d) disposals of Cash Equivalent Investments on arm's length
terms;
(e) disposals on arm's length terms of assets either:
(i) in return for or simultaneous with the acquisition by
a member of the MGG Group of other assets
("COMPARABLE ASSETS") which in the reasonable opinion
of the relevant member of the Group making the
disposal are of comparable or greater value or
earnings generation potential (and, if the assets
disposed of are in a Core Country, the Comparable
Assets must also be in a Core Country) provided that
to the extent that consideration other than the
disposed assets is used to acquire such Comparable
Assets the acquisition of those assets for an amount
equal to that additional consideration would be a
Permitted Acquisition; or
(ii) in respect of which prior to the expiry of 180 days
after receipt by the relevant member of the Group of
the Net Disposal Proceeds relating to the disposal of
-31-
such assets the relevant member of the Group making
such disposal or another member of the Group (which
other member of the Group is, if the member of the
Group making such disposal is incorporated in a Core
Country, also incorporated in a Core Country) has
either (A) acquired Comparable Assets with such Net
Disposal Proceeds or (B) entered into a binding
commitment to acquire Comparable Assets and does so
acquire such Comparable Assets within 360 days of the
date of receipt of such Net Disposal Proceeds
PROVIDED THAT until either (A) or (B) is satisfied an
amount equal to such Net Disposal Proceeds is placed
in a Prepayment Escrow Account within 5 Business Days
of receipt thereof by a member of the Group;
PROVIDED THAT:
(i) the aggregate fair market value of assets which are
permitted to be disposed of pursuant to this
paragraph (e) does not from the date of this
Agreement exceed EUR250,000,000 (or its equivalent in
other currencies); and
(ii) if any asset proposed to be disposed of pursuant to
this paragraph (e) whose fair market value is greater
than EUR10,000,000 (or its equivalent in other
currencies) is subject to security provided under any
Security Document or is owned by a member of the
Group whose shares are pledged under a Security
Document, then for such disposal to be permitted
pursuant to this paragraph (e) the Obligor's Agent
shall either have supplied to the Agent a certificate
signed by any of its Prokurists, supported by
accompanying calculations, demonstrating either:
(x) that if the book value of the assets to be
disposed of and the EBITDA attributable to
such assets disposed of had not been taken
into account in the then most recent
Compliance Certificate or Auditor's Report
(and, if the asset to be acquired is to be
owned by a Security Party, the book value of
and EBITDA attributable to the asset to be
acquired had been taken into account) for
determining compliance with the provisions
of paragraphs (a) and (b) of Clause 23.30
(GUARANTOR GROUP AND SECURITY COVERAGE) it
would have been in compliance with such
paragraphs (a) and (b) of Clause 23.30; or
(y) if (x) is not satisfied, a company will
become an Additional Guarantor and/or
additional Security Documents will be
entered into prior to such disposal which,
if included in such Compliance Certificate
or Auditor's Request, would have meant that
the provisions of paragraphs (a) and (b) of
Clause 23.30 were complied with;
(f) the granting of leases or licences over property on arm's
length terms, where such property is not required to allow the
continued operation of the business of the Group as a whole;
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(g) disposals of cash where such disposal is not prohibited by the
Finance Documents (including cash payments to the Company
which do not give rise to an Event of Default under Clause
23.9 (DIVIDENDS AND DISTRIBUTIONS));
(h) disposals made pursuant to the implementation of the Disposal
Plan;
(i) disposals which pursuant to the provisions of section 14
(APPROVAL OF BUDGETS AND BUSINESS PLAN BY THE SHAREHOLDERS'
COMMITTEE) of the Shareholders' Agreement either do not
require the consent of 75% of the votes cast at a Shareholders
Committee or Shareholders Meeting (each as referred to
therein) or to which MIG is obliged to consent;
(j) disposals expressly contemplated in the Business Combination
Agreement (excluding all of its schedules, exhibits and
attachments) and/or the Ancillary Agreements in the manner and
at the time and subject to the terms and circumstances set out
in the Business Combination Agreement (excluding all of its
schedules, exhibits and attachments but including, without
limitation, any disposals that may be required pursuant to
section 3.3 (EXEMPTION OF CERTAIN TRANSACTIONS) of the BCA);
(k) a disposal by:
(i) Newco 2 of its shares in MGG to Debtco PROVIDED THAT
the shares in MGG remain or are immediately pledged
pursuant to a Security Document;
(ii) Debtco of its shares in MGG to Newco 2 PROVIDED THAT
the shares in MGG remain or are immediately pledged
pursuant to a Security Document;
(iii) MGG of its shares in ▇▇▇▇▇▇ Singapore, its shares in
Syngas and the other Transferred Assets and
Transferred Liabilities of MGG relating to such
companies as referred to in the Singapore Separation
Agreement to Singapore SPV on the terms and
conditions set out in the Singapore Separation
Agreement;
(iv) MGG or any Subsidiary of MGG of its shares in a
Central American Entity or a disposal by a Central
American Entity of substantially all of its assets to
MIG or a person designated by MIG provided that (A)
such disposal is made on an arm's length basis in
good faith and in the commercial interests of the
members of the MGG Group (other than the Central
American Entity) party thereto and (B) 50% of the
consideration for such disposal is received by the
MGG Group in cash; and
(v) the relevant members of the MGG Group of the shares
in the Holding Operating Companies to the Company for
fair market value;
(l) any disposal of assets pursuant to and on the terms of the
Existing Factoring Programme or a Permitted Factoring
Programme;
(m) any disposal to which the Majority Lenders have given their
prior written consent;
(n) any other disposal(s) on arm's length terms PROVIDED THAT the
aggregate consideration received for such disposal(s) (both
cash and non-cash, including the amount of
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Indebtedness for Borrowed Money assumed by the purchaser or
remaining in the assets disposed of or (if the disposal
relates to a disposal of less than the whole of the issued
shares of a person) the relevant proportion of such
Indebtedness for Borrowed Money):
(i) is no greater than EUR50,000,000 (or its equivalent
in another currency or currencies) in any calendar
year; and
(ii) from the date of this Agreement is no greater than
EUR250,000,000 (or its equivalent in another currency
or currencies),
PROVIDED THAT
(A) any disposal by way of the sale of the shares in any member of
the Group (other than the disposal referred to in paragraph
(k)(iii) above) or the sale of substantially all of the assets
of a member of the Group which would otherwise be permitted
under any of the paragraphs of this definition shall not be
permitted if any member of the Group after such disposal would
remain liable for any contingent liabilities relating to the
member of the Group which is to be sold or the business which
is to be sold other than those which it would be customary and
usual for a disposing company to remain liable for; and
(B) in the case of disposals of assets under paragraphs (h), (i)
and (n) above the consideration for such disposals may only
comprise one or more of the elements set out in (1), (2) and
(3) below and may include in addition consideration in the
form of (4) below:
(1) cash payable on the completion of the disposals;
(2) an obligation of the purchaser of such assets to pay
the remainder of the purchase price at a date or
dates no later than 3 years after the completion of
such disposal (a "DEFERRED PURCHASE OBLIGATION")
(provided that the aggregate amount of all such
Deferred Purchase Obligations which have not been
paid in cash to the relevant vendor or otherwise
monetarised shall at no time exceed EUR100,000,000
(or its equivalent in other currencies));
(3) the assumption of indebtedness by the purchaser or
remaining in the asset disposed of; and
(4) an amount of cash payable in the nature of an earn
out payment by the purchaser to the vendor of any
such asset which is genuinely contingent and
dependent on the future performance or future value
of the asset disposed of shall not count towards the
limits set out in paragraph (n) or paragraph (2)
above.
"PERMITTED DISTRIBUTIONS" means the payment or declaration of any
dividend, return on capital, repayment of capital contributions or other
distribution or payment in respect of share capital by any member of the
MGG Group other than:
(a) by MGG save that MGG may:
(i) pay dividends which are MGG Permitted Distributions;
and
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(ii) pay any dividend to Debtco during the Debtco
Structure Period;
(b) by Debtco save that Debtco may pay dividends which are Debtco
Permitted Distributions,
PROVIDED THAT (save as otherwise permitted pursuant to paragraphs (a) or
(b) or pursuant to the Intercreditor Deed) if a Default has occurred
which is continuing no such payment, declaration, return, repayment
distribution or payment may be made by a member of the Group who is an
Obligor to another member of the Group who is not a wholly-owned
Subsidiary of MGG or (during the Debtco Structure Period) Debtco other
than to MGG or (during the Debtco Structure Period) Debtco.
"PERMITTED EXCHANGE NOTES SECURITY" means the following security in
favour of the bond trustee of the holders of the Exchange Notes:
(a) an assignment in substantially the agreed form by Newco 2 over
its rights to receive the excess proceeds (if any) remaining
after a sale of the shares in MGG pursuant to an enforcement
of the pledge over the shares in MGG and after all Senior
Liabilities (as defined in the Intercreditor Deed) have been
fully paid and discharged in full to the satisfaction of the
Agent (acting reasonably); and
(b) an assignment in substantially the agreed form by Newco 2 over
its rights in relation to the proceeds of the Exchange Notes
Loan.
"PERMITTED FACTORING PROGRAMME" means any factoring programme permitted
pursuant to paragraph (k) in the definition of Permitted Indebtedness in
this Clause 1.1 (DEFINITIONS).
"PERMITTED HIGH YIELD SECURITY" means the following security in favour
of the bond trustee of the holders of the High Yield Notes:
(a) an assignment in substantially the agreed form by Newco 2 over
its rights to receive the excess proceeds (if any) remaining
after a sale of the shares in MGG pursuant to an enforcement
of the pledge over the shares in MGG and after all Senior
Liabilities (as defined in the Intercreditor Deed) have been
fully paid and discharged in full to the satisfaction of the
Agent (acting reasonably); and
(b) an assignment in substantially the agreed form by Newco 2 over
its rights in relation to the proceeds of the High Yield
Proceeds Loan.
"PERMITTED INDEBTEDNESS" means:
(a) any Financial Indebtedness arising under or permitted pursuant
to the Finance Documents or the Mezzanine Finance Documents or
any Direct Mezzanine Refinancing Facility;
(b) any Financial Indebtedness arising under Permitted Loans and
Guarantees;
(c) any Financial Indebtedness arising under Permitted Treasury
Transactions;
(d) any Financial Indebtedness PROVIDED THAT such Financial
Indebtedness is subordinated on terms acceptable to the
Majority Lenders (acting reasonably);
-35-
(e) any Financial Indebtedness of any Obligor in respect of a bank
account held as part of a cash pooling or similar arrangement
with any other Obligor(s);
(f) any Financial Indebtedness to the extent such is supported by
any Letter of Credit or Bank Guarantee issued under this
Agreement or is secured (directly or indirectly) by cash
collateral provided by any member of the Group from the
proceeds of any Loan made under this Agreement or under the
Mezzanine Facility Agreement;
(g) any Financial Indebtedness arising under the High Yield
Documents or any Exchange Notes Documents;
(h) any Financial Indebtedness in respect of Finance Leases
PROVIDED THAT the aggregate amount of Financial Indebtedness
which falls within this paragraph (h) does not exceed
EUR225,000,000 (or its equivalent in another currency or
currencies) at any time;
(i) any Financial Indebtedness arising under any Permitted Local
Facilities;
(j) any Financial Indebtedness arising under any Existing
Indebtedness (which is not otherwise permitted under any
paragraph of this definition of Permitted Indebtedness other
than paragraph (l));
(k) any Financial Indebtedness:
(i) incurred pursuant to the terms of the Existing
Factoring Programme PROVIDED THAT (A) the aggregate
amount of such Financial Indebtedness does not exceed
DM 100,000,000 (or its equivalent in other
currencies) at any time and (B) such Existing
Factoring Programme is terminated and the aggregate
amount of Financial Indebtedness incurred pursuant to
it permanently reduced to zero within 31 days of the
Closing Date; or
(ii) incurred pursuant to the terms of any factoring
arrangements other than under the Existing Factoring
Programme PROVIDED THAT the aggregate amount of such
Financial Indebtedness does not exceed EUR15,000,000
(or its equivalent in other currencies) at any time;
(l) any Financial Indebtedness (excluding Financial Indebtedness
of Newco 2) not falling within paragraphs (a) to (k) above
PROVIDED THAT the aggregate amount of Financial Indebtedness
falling within this paragraph (l) does not exceed
EUR50,000,000 (or its equivalent in another currency or
currencies) at any time;
(m) any Financial Indebtedness of Newco 2 under the Newco 2
Receivable or in respect of a loan made by the Company to
Newco 2;
(n) any Financial Indebtedness to which the Majority Lenders have
given their prior written consent.
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"PERMITTED LOANS AND GUARANTEES" means:
(a) trade credit or indemnities granted in the ordinary course of
business on usual and customary terms or guarantees of such
trade credit or indemnities granted in the ordinary course of
business on usual and customary terms;
(b) Intra-Group Loans PROVIDED THAT:
(i) no member of the MGG Group may make a loan to any
Holding Company of MGG save that MGG may make loans
which are MGG Permitted Distributions, Debtco may
make loans which are Debtco Permitted Distributions
and (during the Debtco Structure Period) members of
the MGG Group may make loans to Debtco;
(ii) no loan may be made by any Holding Company of MGG
(other than, during the Debtco Structure Period,
Debtco) to any member of the MGG Group other than:
(A) a High Yield Proceeds Loan; or
(B) a Newco 2 Loan; or
(C) an Exchange Notes Loan;
(iii) no loan may be made by MGG or Debtco or a
wholly-owned Subsidiary of MGG to a Non Wholly-Owned
Subsidiary that is not an Obligor unless the
requirements of Clause 23.7 (JOINT VENTURES AND NON
WHOLLY-OWNED SUBSIDIARIES) would be complied with;
(iv) in the case of any Intra-Group Loan entered into by
any Obligor as a borrower or lender that Obligor has
acceded to the Intercreditor Deed as an Intra-Group
Borrower or Intra-Group Lender (as appropriate)
pursuant to the terms thereof or is already party to
the Intercreditor Deed in such capacity;
(v) in the case of any Intra-Group Loan entered into by
an Obligor as borrower (other than a loan permitted
pursuant to sub-paragraph (ii) or (vi) of this
paragraph (b)) the lender of such loan has acceded to
the Intercreditor Deed as an Intra-Group Lender;
(vi) the aggregate amount of Financial Indebtedness at any
time owed by Obligors under Intra-Group Loans to
members of the MGG Group who are not party to the
Intercreditor Deed as Intra-Group Lenders does not
exceed EUR100,000,000 (or its equivalent in other
currencies);
(vii) any Intra-Group Loan made by a Treasury Borrower
shall be made in accordance with the provisions of a
Treasury Borrower Loan Agreement;
(viii) any Intra-Group Loan made by Debtco as lender may
only be made to MGG as borrower and shall expressly
provide that it is governed by German law;
-37-
(c) loans to MGG Joint Ventures or Unconsolidated Subsidiaries of
Newco 2 by members of the MGG Group which are made pursuant to
binding arrangements which were existing prior to the Closing
Date;
(d) loans to an MGG Joint Venture or an Unconsolidated Subsidiary
of Newco 2 by a member of the MGG Group which do not fall
within paragraph (c) above or paragraph (g) below PROVIDED
THAT the requirements of Clause 23.7 (JOINT VENTURES AND NON
WHOLLY-OWNED SUBSIDIARIES) would be complied with;
(e) loans constituting Permitted Indebtedness or guarantees or
indemnities which would constitute Permitted Indebtedness or
guarantees or indemnities in respect of Permitted Local
Facilities;
(f) loans to employees of the MGG Group and guarantees of loans to
such employees PROVIDED THAT the aggregate principal amount of
all such loans and guarantees does not exceed EUR10,000,000
(or its equivalent in other currencies) at any time;
(g) MGG may make loans to Singapore SPV in order to satisfy its
obligations pursuant to the provisions of section 4.2 (MAKING
OF SHAREHOLDER LOANS) of the Singapore Separation Agreement
PROVIDED THAT (i) such loans are repayable by Singapore SPV on
the terms and conditions specified in the Singapore Separation
Agreement and (ii) the aggregate amount of all such loans does
not exceed at any time DM 180,000,000 (or its equivalent) less
the Hoechst Closing Amount (as defined in section 4.5 of the
Singapore Separation Agreement, being the amount confirmed
under paragraph 3(e) of Part I of Schedule 2 (CONDITIONS
PRECEDENT));
(h) guarantees or indemnities given by members of the MGG Group in
respect of indebtedness of MGG Joint Ventures or
Unconsolidated Subsidiaries of Newco 2 which are made pursuant
to binding arrangements which were existing prior to the
Closing Date;
(i) guarantees or indemnities given by members of the MGG Group in
respect of indebtedness of MGG Joint Ventures or
Unconsolidated Subsidiaries of Newco 2 which do not fall
within paragraph (h) above provided that the requirements of
Clause 23.7 (JOINT VENTURES AND NON WHOLLY-OWNED SUBSIDIARIES)
would be complied with;
(j) guarantees or indemnities given by a member of the MGG Group
in respect of the indebtedness of another member of the MGG
Group provided that no such guarantees or indemnities may be
given by MGG or Debtco or a wholly-owned Subsidiary of MGG in
respect of the indebtedness of a Non Wholly-Owned Subsidiary
that is not an Obligor unless the requirements of Clause 23.7
(JOINT VENTURES AND NON WHOLLY-OWNED SUBSIDIARIES) would be
complied with; and
(k) the extension of credit by a member of the Group making a
disposal of an asset to the purchaser of such asset PROVIDED
THAT in the case of disposals made under paragraphs (h), (i)
and (n) of the definition of Permitted Disposals such credit
is permitted pursuant to paragraph (B) of the proviso at the
end of the definition of Permitted Disposals.
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"PERMITTED LOCAL FACILITIES" means any bank facilities (other than
facilities provided under the Finance Documents or the Mezzanine Finance
Documents or any Direct Mezzanine Refinancing Facility) made available
to members of the MGG Group (on normal commercial terms) PROVIDED THAT:
(a) the aggregate indebtedness of all members of the MGG Group in
respect of such bank facilities at no time exceeds EUR50,000,000 (or its
equivalent in any other currency or currencies); and (b) no one such
bank facility is capable of having more than EUR10,000,000 (or its
equivalent in other currencies) outstanding at any one time.
"PERMITTED SECURITY" means:
(a) any Security entered into pursuant to any of the Finance
Documents or the Mezzanine Finance Documents or any Direct
Mezzanine Refinancing or any Permitted High Yield Security or
any Permitted Exchange Notes Security;
(b) any Security which was provided prior to the Closing Date by
any member of the MGG Group PROVIDED THAT the principal amount
of indebtedness secured by any such Security as at the Closing
Date is not increased and the aggregate principal amount of
indebtedness secured by all such Security after the first Loan
has been made hereunder is not greater than EUR25,000,000 (or
its equivalent in other currencies) subject to the proviso at
the end of this definition;
(c) any netting or set-off arrangement (or any Security over a
credit balance in a bank account which is entered into in
order to effect such an arrangement) entered into:
(i) by any member of the Group in the normal course of
its banking arrangements; or
(ii) by any member of the MGG Group in relation to another
member of the MGG Group in connection with any cash
pooling or similar arrangements between such members
of the MGG Group; or
(iii) in the ordinary course of trade;
(d) any netting or set-off arrangement under a Hedging Agreement
where the obligations of other parties thereunder are
calculated by reference to net exposure thereunder (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 under this Agreement);
(e) any lien arising by operation of law and in the ordinary
course of trading;
(f) any Security over or affecting (or Quasi Security affecting)
any asset acquired by a member of the Group after the date of
this Agreement if:
(i) the Security or Quasi-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 or Quasi-Security is removed or
discharged within three months of the date of
acquisition of such asset;
-39-
(g) any Security or Quasi-Security over or affecting any asset of
any company which becomes a member of the Group after the date
of this Agreement, where the Security or Quasi-Security is
created prior to the date on which that company becomes a
member of the Group, if:
(i) the Security or Quasi-Security was not created in
contemplation of the acquisition of that company;
(ii) the principal amount secured has not increased in
contemplation of or since the acquisition of that
company; and
(iii) the Security or Quasi-Security is removed or
discharged within three months of that company
becoming a member of the Group;
(h) any title transfer or 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;
(i) 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;
(j) any Security arising under the general business conditions of
any credit institution with whom any member of the Group
maintains a banking relationship in the ordinary course of
business;
(k) any Security arising on rental deposits in connection with the
occupation of leasehold premises in the ordinary course of
business;
(l) any Security arising by operation of law in favour of any
government, 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;
(m) any Security or Quasi Security securing Permitted Local
Facilities subject to the proviso at the end of this
definition;
(n) any Security provided by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Tobago Limited to
International Finance Corporation ("IFC") securing amounts
owing under the loan agreement dated 15 February 2000 made
between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Tobago Limited and IFC;
(o) any Security over a deposit in a bank account providing cash
collateral in respect of any Existing Indebtedness or securing
(directly or indirectly) any Financial Indebtedness falling
within paragraph (f) of the definition of Permitted
Indebtedness;
(p) any Security or Quasi-Security arising under or in respect of
any Finance Lease falling within paragraph (h) of the
definition of Permitted Indebtedness;
(q) any Security or Quasi-Security not falling within paragraphs
(a) to (p) above securing indebtedness and/or other
obligations the aggregate principal amount of which does not
exceed EUR50,000,000 (or its equivalent in another currency or
currencies) subject to the proviso at the end of this
definition; and
-40-
(r) any Security to which the Majority Lenders have given their
prior written consent,
PROVIDED THAT the Security or Quasi Security falling within paragraphs
(b), (j), (m) and (q) above may not at any time after the first Loan is
made hereunder secure indebtedness and/or other obligations (or, in the
case of any Security falling under paragraph (j) above the value of the
assets subject to such Security) the aggregate principal amount of which
exceeds EUR75,000,000 (or its equivalent in other currencies).
"PERMITTED TREASURY TRANSACTIONS" means:
(a) the Treasury Transactions entered into in accordance with
Clause 23.29 (HEDGING);
(b) the Treasury Transactions, if any, which are foreign exchange
transactions entered into with a Hedge Counterparty in
connection with payments made or to be made by any Obligor in
connection with the Acquisition; and
(c) 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 currency
exposures (including, without limitation, currency exposure
relating to Loans made in an Optional Currency) incurred by
any member of the Group.
"PREPAYMENT ESCROW ACCOUNT" means an interest bearing account held with
the Agent (or such other financial institution reasonably acceptable to
the Agent) in the name of any Obligor (and identified as a Prepayment
Escrow Account), over which such Obligor has granted Security in favour
of the Security Trustee or all of the Finance Parties and into which
sums are deposited in accordance with Clause 9 (PREPAYMENT AND
CANCELLATION) and may not be withdrawn by any member of the Group other
than as provided by Clause 9 (PREPAYMENT AND CANCELLATION).
"PREPAYMENT ORDER" means, in respect of any amount to be applied in
repayment of any Term Disposal Facility Loans, Term A Facility Loans,
Term B Euro Facility Loans, Term B Dollar Facility Loans, Term C Euro
Facility Loans or Term C Dollar Facility Loans in accordance with Clause
9.8 (APPLICATION OF PREPAYMENTS), the application of such amount as
follows:
(a) as to 50 per cent. of such amount, the application of such in
satisfaction of the obligations under Clause 7.1 (REPAYMENT OF
TERM DISPOSAL FACILITY LOANS), Clause 7.2 (REPAYMENT OF TERM A
FACILITY LOANS), Clause 7.3 (REPAYMENT OF TERM B DOLLAR
FACILITY LOANS), Clause 7.4 (REPAYMENT OF TERM B EURO FACILITY
LOANS), Clause 7.5 (REPAYMENT OF TERM C EURO FACILITY LOANS)
or, as the case may be, Clause 7.6 (REPAYMENT OF TERM C DOLLAR
FACILITY LOANS) in inverse chronological order; and
(b) as to the remaining 50 per cent. of such amount, the
application of such in satisfaction of the obligations under
Clause 7.1 (REPAYMENT OF TERM DISPOSAL FACILITY LOANS), Clause
7.2 (REPAYMENT OF TERM A FACILITY LOANS), Clause 7.3
(REPAYMENT OF TERM B DOLLAR FACILITY LOANS), Clause 7.4
(REPAYMENT OF TERM B EURO FACILITY LOANS), Clause 7.5
(REPAYMENT OF TERM C EURO FACILITY LOANS) or, as the case may
be, Clause 7.6 (REPAYMENT OF TERM C DOLLAR FACILITY LOANS) pro
rata across the Outstandings under each of the relevant Term
Facilities.
-41-
"PREPAYMENT PREMIUM" means an amount equal to:
(a) in respect of a Prepayment Premium Loan (or part of a
Prepayment Premium Loan) which either becomes immediately due
and payable pursuant to the provisions of Clause 9.2 (CHANGE
OF CONTROL) or Clause 9.3 (FLOTATION OR SALE) or which a
Borrower voluntarily gives notice that it wishes to prepay, in
each case on or before the day 12 Months after the Closing
Date, 2 per cent. of the Base Currency Amount of the portion
of that Prepayment Premium Loan which is to be prepaid; or
(b) in respect of a Prepayment Premium Loan (or part of a
Prepayment Premium Loan) which either becomes immediately due
and payable pursuant to the provisions of Clause 9.2 (CHANGE
OF CONTROL) or Clause 9.3 (FLOTATION OR SALE) or which a
Borrower voluntarily gives notice that it wishes to prepay, in
each case after the day 12 Months after the Closing Date but
on or before the Prepayment Premium Date, 1 per cent. of the
Base Currency Amount of the portion of that Prepayment Premium
Loan which is to be prepaid.
"PREPAYMENT PREMIUM DATE" means the day 24 Months after the Closing
Date.
"PREPAYMENT PREMIUM LOAN" means a Term B Euro Facility Loan, a Term B
Dollar Facility Loan, a Term C Euro Facility Loan or a Term C Dollar
Facility Loan.
"PRIORITY LETTER" means any letter in the agreed form from an addressee
of a Report which is not a party to the Intercreditor Deed and which is
addressed to the Security Trustee on behalf of the Finance Parties and
the Mezzanine Finance Parties relating to the priority of claims in
respect of that Report.
"QUASI SECURITY" means any of the transactions described in paragraph
(b) of Clause 23.3 (NEGATIVE PLEDGE).
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is sterling) the first day of that period;
(b) (if the currency is euro) two TARGET Days before the first day
of that period; or
(c) (for any other currency) two Business Days before the first
day of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day, the
Quotation Day will be the last of those days) PROVIDED THAT in the case
of any Loan to which a one day interest period shall apply pursuant to
paragraph (j) of Clause 11.4 (SELECTION OF INTEREST PERIODS AND TERMS)
the Quotation Day shall be the first day of that period.
"REFERENCE BANKS" means the principal London offices of The Chase
Manhattan Bank, Bayerische Hypo-und Vereinsbank AG and The Royal Bank of
Scotland plc or such other banks as may be appointed by the Agent with
the approval of the Obligor's Agent (such approval not to be
unreasonably withheld or delayed).
-42-
"REFINANCING NOTES" means any High Yield Notes or any Exchange Notes.
"REGISTER" has the meaning ascribed to it in Clause 25.1 (ASSIGNMENTS
AND TRANSFERS BY THE LENDERS).
"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).
"RELATED PARTY" means any of the following:
(a) an Affiliate of a specified person;
(b) any other person directly or indirectly controlling or
controlled by or under direct or indirect common control with
that specified person, where "CONTROL" (and "CONTROLLING",
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH") mean the
possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a person,
whether by the ownership of shares, by agreement or otherwise;
(c) a person who beneficially owns 5 per cent. or more of the
issued share capital of a specified person.
"RELEVANT DEBT RELIEF AMOUNT" means, at any time, the aggregate of:
(a) Debt Relief Amounts at such time attributable to disposals
under the Disposal Plan;
(b) Debt Relief Amounts at such time attributable to disposals
falling under paragraph (i) of the definition of Permitted
Disposal;
and a Debt Relief Amount will only be attributable to disposals referred
to in paragraphs (a) or (b) above if in relation to the relevant
disposal the Compliance Certificate accompanying the financial
statements for the period in which such disposals were made is delivered
pursuant to Clause 21.2 (COMPLIANCE CERTIFICATES) providing:
(i) details as to the asset disposed of; and
(ii) confirming that it is a disposal under the Disposal
Plan or falling within paragraph (i) of the
definition of Permitted Disposals (as the case may
be); and
(iii) confirming the Debt Relief Amount relating to that
disposal together with reasonable details as to how
this has been calculated.
"RELEVANT GAAP" means:
(a) with respect to Newco 2 on a consolidated basis and MGG, IAS
or (subject to agreement being reached pursuant to the
provisions of paragraph (d) of Clause 21.4 (REQUIREMENTS AS TO
FINANCIAL STATEMENTS)), US GAAP; and
(b) with respect to any other member of the Newco 2 Group (either
alone or including its Subsidiaries), the generally accepted
accounting principles and practices of its jurisdiction of
incorporation.
-43-
"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 or, if
it is not incorporated, its seat or principal place of business.
"RELIANCE LETTER" means any letter in the agreed form from a provider of
a Report and which is addressed to the Security Trustee (on behalf of
the Finance Parties and the Mezzanine Finance Parties) or any Arranger
on behalf of the Finance Parties and any Mezzanine Arranger on behalf of
the Mezzanine Finance Parties or the relevant Finance Parties and the
relevant Mezzanine Finance Parties and pursuant to which the provider of
the Report agrees that the relevant Finance Parties and the relevant
Mezzanine Finance Parties are entitled to rely on such Report subject to
and on the terms set out therein.
"REPAYMENT INSTALMENT" means a Term Disposal Facility Repayment
Instalment, a Term A Facility Repayment Instalment, a Term B Euro
Facility Repayment Instalment, a Term B Dollar Facility Repayment
Instalment, a Term C Euro Facility Repayment Instalment or a Term C
Dollar Facility Repayment Instalment.
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clauses 20.4 (STATUS) to 20.11 (NO DEFAULT) (inclusive), paragraph (d)
of Clause 20.12 (NO MISLEADING INFORMATION), Clause 20.13 (FINANCIAL
STATEMENTS), Clause 20.14 (FINANCIAL YEAR END), Clauses 20.15 (PARI
PASSU RANKING) to 20.23 (GOOD TITLE TO ASSETS) (inclusive) and Clauses
20.27 (GROUP STRUCTURE) to Clause 20.36 (INVESTMENT COMPANIES)
(inclusive).
"REPORTS" means:
(a) the Legal Reports;
(b) the long form accountants' report on the MGG Group, in the
agreed form, prepared by KPMG Deutsche Treuhand-Gesellschaft
AG which includes the following sections:
(i) the Group Financials Report;
(ii) the Country Reports;
(iii) the Pensions Reports;
(iv) the IT Report;
(v) the Tax Report;
(vi) the Cost Analysis;
(vii) the Net Debt Report;
(viii) the 2000 Outturn Report to be provided pursuant to
(and as defined in) parargraph (b) of Clause 23.37
(CONDITIONS SUBSEQUENT); and
(ix) the Projections Report to be provided pursuant to
(and as defined in) parargraph (b) of Clause 23.37
(CONDITIONS SUBSEQUENT);
-44-
(c) the market report on the MGG Group, in the agreed form,
prepared by CryoGas Consulting Limited;
(d) the environmental report on the MGG Group, in the agreed form,
prepared by Dames & ▇▇▇▇▇ GmbH & Co. KG;
(e) the insurance report on the MGG Group, in the agreed form,
dated September 2000 prepared by ▇▇▇▇▇ GmbH;
(f) the Consultants Report; and
(g) the KPMG Business Plan Audit;
"RESERVATIONS" means any reservations as to matters of law which are
referred to in any legal opinion delivered to the Agent pursuant to, in
respect of the Company and Newco 2, Clause 4 (CONDITIONS OF UTILISATION)
or, in respect of any Additional Obligor, Clause 26 (CHANGES TO THE
OBLIGORS).
"RESIGNATION LETTER" means a letter substantially in the form set out in
Schedule 7 (FORM OF RESIGNATION LETTER).
"RESTRUCTURING EXPENSES" means costs and expenses relating to the
Restructuring Programme which do not exceed in aggregate EUR100,000,000
or its equivalent in other currencies.
"RESTRUCTURING PROGRAMME" means the restructuring programme intended to
be implemented by the MGG Group after the Closing Date as set out in
Schedule 9 (RESTRUCTURING PROGRAMME).
"REVOLVING FACILITY" means the Revolving Facility I or the Revolving
Facility II.
"REVOLVING FACILITY LOAN" means a Revolving Facility I Loan or a
Revolving Facility II Loan.
"REVOLVING FACILITY I" means the revolving loan, letter of credit and
bank guarantee facility made available under this Agreement as described
in paragraph (g) of Clause 2.1 (THE FACILITIES).
"REVOLVING FACILITY I COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Revolving
Facility I Commitment" in Part II of Schedule 1 (THE CLOSING
PARTIES) and the amount of any other Revolving Facility I
Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Revolving Facility I Commitment transferred to
it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"REVOLVING FACILITY I LOAN" means a loan made or to be made under the
Revolving Facility I or the principal amount outstanding for the time
being of that loan.
-45-
"REVOLVING I OUTSTANDINGS" means at any time, the aggregate of the Base
Currency Amounts of the outstanding Revolving Facility I Loans and the
amount of the maximum actual and contingent liabilities of the Lenders
in respect of each outstanding Letter of Credit and Bank Guarantee
issued under Revolving Facility I.
"REVOLVING FACILITY II" means the revolving loan, letter of credit and
bank guarantee facility made available under this Agreement as described
in paragraph (h) of Clause 2.1 (THE FACILITIES).
"REVOLVING FACILITY II COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Revolving
Facility II Commitment" in Part II of Schedule 1 (THE CLOSING
PARTIES) and the amount of any other Revolving Facility II
Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Revolving Facility II Commitment transferred
to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"REVOLVING FACILITY II LOAN" means a loan made or to be made under the
Revolving Facility II or the principal amount outstanding for the time
being of that loan.
"REVOLVING II OUTSTANDINGS" means at any time, the aggregate of the Base
Currency Amounts of the outstanding Revolving Facility II Loans and the
amount of the maximum actual and contingent liabilities of the Lenders
in respect of each outstanding Letter of Credit and Bank Guarantee
issued under Revolving Facility II.
"ROLLOVER LOAN" means one or more Revolving Facility Loans made under
the same Revolving Facility:
(a) made or to be made on the same day that (i) a maturing
Revolving Facility Loan under that same Revolving Facility is
due to be repaid or (ii) a demand in respect of either a
Letter of Credit or a Bank Guarantee under that same Revolving
Facility is due to be met;
(b) the aggregate amount of which is equal to or less than the
maturing Revolving Facility Loan or, as the case may be,
Letter of Credit or Bank Guarantee due to be met;
(c) in the same currency as the maturing Revolving Facility Loan
(unless it arose as a result of the operation of Clause 6.2
(UNAVAILABILITY OF A CURRENCY)), Letter of Credit or Bank
Guarantee; and
(d) made or to be made for the purpose of:
(i) refinancing a maturing Revolving Facility Loan under
that same Revolving Facility; or
-46-
(ii) satisfying any demand made by the Agent under Clause
8.1 (DEMANDS UNDER LETTERS OF CREDIT AND BANK
GUARANTEES) pursuant to a drawing under a Letter of
Credit or claim under a Bank Guarantee issued under
that same Revolving Facility.
"SALE" means a sale or disposal (whether in a single transaction or a
series of related transactions) of all or substantially all of the
shares and/or assets of the Group PROVIDED THAT the disposal of 66 2/3%
of the shares in Newco 2 to Hoechst Newco 3 as a result of, and on the
terms of, the transactions expressly contemplated in the Business
Combination Agreement shall be deemed not to be a Sale.
"SCREEN RATE" means:
(a) in relation to LIBOR, the British Bankers' Association
Interest Settlement Rate for the relevant currency and period;
and
(b) in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for
the relevant period,
displayed on the appropriate page of the Telerate screen. If the agreed
page is replaced or service ceases to be available, the Agent may
specify another page or service displaying the appropriate rate after
consultation with the Obligor's Agent and the Lenders.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"SECURITY DOCUMENTS" means:
(a) each security document referred to in paragraph 5 of Part I of
Schedule 2 (CONDITIONS PRECEDENT); and
(b) any other document entered into by any member of the Group
creating or evidencing Security for all or any part of the
obligations of the Obligors or any of them under any of the
Finance Documents or the Mezzanine Finance Documents or the
Direct Mezzanine Refinancing Facility.
"SECURITY PARTY" has the meaning given to it in Clause 23.30 (GUARANTOR
GROUP AND SECURITY COVERAGE).
"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 TERMS) or Clause 6.1 (SELECTION OF CURRENCY) in
relation to a Term Facility.
"SHAREHOLDERS' AGREEMENT" means the agreement dated 31 December 2000
between the Initial Sponsors and MIG (as amended by an amendment
agreement made on or prior to the Closing Date in the agreed form),
setting out the terms of the Initial Sponsors' and MIG's rights and
obligations in respect of their shareholdings in the Company.
"SINGAPORE SPV" means DIOGENES Neunzehnte Vermogensverwaltungs GmbH, a
newly incorporated limited liability company in which pursuant to the
terms of the Singapore
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Separation Agreement MGG will be a shareholder and which will hold the
interest in ▇▇▇▇▇▇ Singapore and Syngas currently held by MGG.
"SINGAPORE SEPARATION AGREEMENT" means the formation, funding and
shareholders agreement in the agreed form made on or about the date
hereof between, amongst others, MGG, the Vendor, MIG, Singapore SPV, the
Company and Aventis in relation to (amongst other things) the sale by
MGG to Singapore SPV of all of MGG's shares in Syngas and ▇▇▇▇▇▇
Singapore.
"SYNGAS" means Singapore Syngas Pte. Limited, a company incorporated in
Singapore which at the date hereof is an MGG Joint Venture.
"SPECIFIED TIME" means a time determined in accordance with Schedule 10
(TIMETABLES).
"SUBORDINATION AGREEMENT" means:
(a) any High Yield Subordination Agreement;
(b) any Newco 2 Loan Subordination Agreement;
(c) the China Subordination Agreement;
(d) any subordination agreement subordinating Financial
Indebtedness referred to in paragraph (d) of the definition of
Permitted Indebtedness; and
(e) any Exchange Notes Subordination Agreement.
"SUBSIDIARY" means, in relation to any company or corporation, a
company or corporation:
(a) which is controlled, directly or indirectly, by the first
mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly by the first
mentioned company or corporation; or
(c) which is a Subsidiary of another Subsidiary of the first
mentioned company or corporation,
and for this purpose, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
direct its management and policies and/or to control the composition of
its board of directors or equivalent body.
"SYNDICATION DATES" means:
(a) the date notified by the Bookrunners to the Obligor's Agent at
least five Business Days prior to such date as the day on
which primary syndication of the Facilities is to be
completed; and
(b) the date notified by the Bookrunners to the Obligor's Agent at
least five Business Days prior to such date as the day on
which general syndication of the Facilities is to be
completed,
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each such date being one on which one or more financial institutions
become Parties to this Agreement as Lenders as part of such syndication
PROVIDED THAT each Syndication Date shall not be more than 6 Months
after the Closing Date.
"SYNDICATION LETTER" means the letter from the Arrangers to MGG, Allianz
Capital Partners GmbH and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners 2000, L.P.
dated on or about the date hereof headed "Senior Syndication Letter".
"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).
"TAXES ACT" means the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
"TERM" means, in relation to any Letter of Credit or Bank Guarantee, the
period from its Utilisation Date until its Expiry Date.
"TERM DISPOSAL FACILITY" means the term loan facility made available
under this Agreement as described in paragraph (a) of Clause 2.1 (THE
FACILITIES).
"TERM DISPOSAL FACILITY COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Term
Disposal Facility Commitment" in Part II of Schedule 1 (THE
CLOSING PARTIES) and the amount of any other Term Disposal
Facility Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in the Base
Currency of any Term Disposal Facility Commitment transferred
to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"TERM DISPOSAL FACILITY LOAN" means a loan made or to be made under the
Term Disposal Facility or the principal amount outstanding for the time
being of that loan.
"TERM DISPOSAL FACILITY REPAYMENT DATE" means the date falling 24
Months after the Closing Date.
"TERM FACILITIES" means the Term Disposal Facility and the Term
Refinancing Facilities.
"TERM FACILITY LOAN" means a Term Disposal Facility Loan, a Term A
Facility Loan, a Term B Euro Facility Loan, a Term B Dollar Facility
Loan, a Term C Euro Facility Loan or a Term C Dollar Facility Loan.
"TERM REFINANCING FACILITIES" means the Term A Facility, the Term B Euro
Facility, the Term B Dollar Facility, the Term C Euro Facility and the
Term C Dollar Facility.
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"TERM REFINANCING FACILITY LOAN" means any Term Facility Loan other than
a Term Disposal Facility Loan.
"TERM A FACILITY" means the term loan facility made available under this
Agreement as described in paragraph (b) of Clause 2.1 (THE FACILITIES).
"TERM A FACILITY COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Term A
Facility Commitment" in Part II of Schedule 1 (THE CLOSING
PARTIES) and the amount of any other Term A Facility
Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Term A Facility Commitment transferred to it
under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"TERM A FACILITY LOAN" means a loan made or to be made under the Term A
Facility or the principal amount outstanding for the time being of that
loan.
"TERM A FACILITY REPAYMENT DATE" means each of the dates specified in
the table set out in paragraph (a) of Clause 7.2 (REPAYMENT OF TERM A
FACILITY LOANS) as a Repayment Date, but if any such date is not a
Business Day, then that Repayment Date shall be deemed to be the
immediately succeeding Business Day (if that succeeding Business Day
falls in the same calendar month) or (if it does not) the immediately
preceding Business Day.
"TERM A FACILITY REPAYMENT INSTALMENT" means each instalment for
repayment of the Term A Facility Loans referred to in Clause 7.2
(REPAYMENT OF TERM A FACILITY LOANS).
"TERM B DOLLAR FACILITY" means the term loan facility made available
under this Agreement as described in paragraph (c) of Clause 2.1 (THE
FACILITIES).
"TERM B DOLLAR FACILITY COMMITMENT" means:
(a) in relation to an Original Lender, the amount in dollars set
opposite its name under the heading "Term B Dollar Facility
Commitment" in Part II of Schedule 1 (THE CLOSING PARTIES) and
the amount of any other Term B Dollar Facility Commitment
transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in dollars of any
Term B Dollar Facility Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"TERM B DOLLAR FACILITY LOAN" means a loan made or to be made under the
Term B Dollar Facility or the principal amount outstanding for the time
being of that loan.
"TERM B DOLLAR FACILITY REPAYMENT INSTALMENT" means each instalment for
repayment of the Term B Dollar Facility Loans referred to in Clause 7.3
(REPAYMENT OF TERM B DOLLAR FACILITY LOANS).
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"TERM B EURO FACILITY" means the term loan facility made available under
this Agreement as described in paragraph (d) of Clause 2.1 (THE
FACILITIES).
"TERM B EURO FACILITY COMMITMENT" means:
(a) in relation to an Original Lender, the amount in euros set
opposite its name under the heading "Term B Euro Facility
Commitment" in Part II of Schedule 1 (THE CLOSING PARTIES) and
the amount of any other Term B Euro Facility Commitment
transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in euros of any
Term B Euro Facility Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"TERM B EURO FACILITY LOAN" means a loan made or to be made under the
Term B Euro Facility or the principal amount outstanding for the time
being of that loan.
"TERM B EURO FACILITY REPAYMENT INSTALMENT" means each instalment for
repayment of the Term B Euro Facility Loans referred to in Clause 7.4
(REPAYMENT OF TERM B EURO FACILITY LOANS).
"TERM B FACILITIES" means the Term B Dollar Facility and the Term B
Euro Facility.
"TERM B FACILITY REPAYMENT DATE" means each of the days which are 90 and
96 Months after the Base Date.
"TERM C DOLLAR FACILITY" means the dollar term loan facility made
available under this Agreement as described in paragraph (f) of Clause
2.1 (THE FACILITIES).
"TERM C DOLLAR FACILITY COMMITMENT" means:
(a) in relation to an Original Lender, the amount in dollars set
opposite its name under the heading "Term C Dollar Facility
Commitment" in Part II of Schedule 1 (THE CLOSING PARTIES) and
the amount of any other Term C Dollar Facility Commitment
transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in dollars of any
Term C Dollar Facility Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"TERM C DOLLAR FACILITY LOAN" means a loan made or to be made under the
Term C Dollar Facility or the principal amount outstanding for the time
being of that loan.
"TERM C DOLLAR FACILITY REPAYMENT INSTALMENT" means each instalment for
repayment of the Term C Dollar Facility Loans referred to in Clause 7.6
(REPAYMENT OF TERM C DOLLAR FACILITY LOANS).
"TERM C EURO FACILITY" means the term loan facility made available under
this Agreement as described in paragraph (e) of Clause 2.1 (THE
FACILITIES).
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"TERM C EURO FACILITY COMMITMENT" means:
(a) in relation to an Original Lender, the amount in euros set
opposite its name under the heading "Term C Euro Facility
Commitment" in Part II of Schedule 1 (THE CLOSING PARTIES) and
the amount of any other Term C Euro Facility Commitment
transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in euros of any
Term C Euro Facility Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"TERM C EURO FACILITY LOAN" means a loan made or to be made under the
Term C Euro Facility or the principal amount outstanding for the time
being of that loan.
"TERM C EURO FACILITY REPAYMENT INSTALMENT" means each instalment for
repayment of the Term C Euro Facility Loans referred to in Clause 7.5
(REPAYMENT OF TERM C EURO FACILITY LOANS).
"TERM C FACILITIES" means the Term C Euro Facility and the Term C
Dollar Facility.
"TERM C FACILITY REPAYMENT DATE" means each of the days which are 102
and 108 Months after the Base Date.
"TERMINATION DATE" means:
(a) in relation to the Term Disposal Facility, the day which is 24
Months after the Closing Date;
(b) in relation to the Term A Facility, the day which is 84 Months
after the Base Date;
(c) in relation to the Term B Dollar Facility, the day which is 96
Months after the Base Date;
(d) in relation to the Term C Euro Facility and the Term C Dollar
Facility, the Final Maturity Date;
(e) in relation to each Revolving Facility, the day which is 84
Months after the Base Date.
"TOTAL COMMITMENTS" means the aggregate of the Total Term Disposal
Facility Commitments, the Total Term A Facility Commitments, the Total
Term B Euro Facility Commitments, the Total Term B Dollar Facility
Commitments, the Total Term C Euro Facility Commitments, the Total Term
C Dollar Facility Commitments, the Total Revolving Facility I
Commitments and the Total Revolving Facility II Commitments, being the
aggregate of EUR1,050,000,000 and $540,000,000 at the date of this
Agreement.
"TOTAL DEBT RELIEF AMOUNT" means, at any time, the aggregate of all Debt
Relief Amounts at such time in relation to all Permitted Disposals made
after the date of this Agreement up to such time.
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"TOTAL NON-INDEMNIFIED UNCONSOLIDATED DEBT" means, at any time, the
aggregate amount (without double counting) of Unconsolidated Debt at
that time which is not Indemnified Unconsolidated Debt at such time.
"TOTAL REVOLVING FACILITY I COMMITMENTS" means the aggregate of the
Revolving Facility I Commitments, being EUR260,000,000 at the date of
this Agreement.
"TOTAL REVOLVING FACILITY II COMMITMENTS" means the aggregate of
the Revolving Facility II Commitments, being EUR50,000,000 at the
date of this Agreement.
"TOTAL TERM DISPOSAL FACILITY COMMITMENTS" means the aggregate of the
Term Disposal Facility Commitments, being $225,000,000 at the date of
this Agreement.
"TOTAL TERM A FACILITY COMMITMENTS" means the aggregate of the Term A
Facility Commitments, being EUR400,000,000 at the date of this
Agreement.
"TOTAL TERM B DOLLAR FACILITY COMMITMENTS" means the aggregate of the
Term B Dollar Facility Commitments, being $153,000,000 at the date of
this Agreement.
"TOTAL TERM B EURO FACILITY COMMITMENTS" means the aggregate of Term B
Euro Facility Commitments, being EUR170,000,000 at the date of this
Agreement.
"TOTAL TERM C DOLLAR FACILITY COMMITMENTS" means the aggregate of the
Term C Dollar Facility Commitments, being $162,000,000 at the date of
this Agreement.
"TOTAL TERM C EURO FACILITY COMMITMENTS" means the aggregate of the Term
C Euro Facility Commitments, being EUR170,000,000 at the date of this
Agreement.
"TRANSACTION DOCUMENTS" means the Acquisition Documents, the Finance
Documents, the Mezzanine Finance Documents, the High Yield Documents any
documents relating to the Direct Mezzanine Refinancing and any Exchange
Notes Documents.
"TRANSACTION SECURITY" means the security from time to time constituted
by or pursuant to the Security Documents.
"TRANSFER CERTIFICATE" means a certificate substantially in one of the
forms set out in Part I or Part II of Schedule 5 (FORM OF TRANSFER
CERTIFICATES) or any other form agreed between the Agent and the
Obligor's Agent.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Certificate; and
(b) the date on which the Agent executes the Transfer Certificate
and the transfer is recorded by the Agent in the Register.
"TREASURY BORROWER" means ▇▇▇▇▇▇ Finance S.A. and any other entity
identified by the Obligor's Agent as a Treasury Borrower prior to the
first Utilisation under this Agreement, such company to be a newly
incorporated member of the MGG Group which is incorporated with limited
liability in The Netherlands or Luxembourg and is formed to be a finance
company (and not a trading company) performing (along with MGG or, as
the case may be,
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Debtco) the treasury function for the MGG Group PROVIDED THAT there
shall not be more than two Treasury Borrowers.
"TREASURY BORROWER LOAN AGREEMENT" means a loan agreement entered into
by a Treasury Borrower as lender with a member of the MGG Group in one
of the agreed forms.
"TREASURY TRANSACTION" means any currency or interest purchase, cap or
collar agreement, forward rate agreements, 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.
"UNCONSOLIDATED DEBT" means any Financial Indebtedness of any member of
the MGG Group under any guarantee or indemnity given by any member of
the MGG Group in respect of Financial Indebtedness of a person who is
not a member of the MGG Group.
"UNCONSOLIDATED SUBSIDIARY" means, in relation to a company or
corporation, a Subsidiary of such company or corporation which is not a
Consolidated Subsidiary.
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"US BORROWER" means a Borrower whose jurisdiction of incorporation is a
state of the United States of America or the District of Columbia.
"US GAAP" means generally accepted accounting principles and practices
in the United States of America.
"US GROUP MEMBER" means any member of the Group whose Relevant
Jurisdiction is the United States of America (or any state thereof) or
the District of Columbia.
"US GUARANTOR" means a Guarantor whose Relevant Jurisdiction is a state
of the United States of America or the District of Columbia.
"UTILISATION" means a utilisation of a Facility by way of Loan or (in
the case of a Revolving Facility) Letter of Credit or Bank Guarantee.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made or the relevant Letter of Credit
or Bank Guarantee issued.
"UTILISATION REQUEST" means a notice substantially in the form set out
in Part I of Schedule 3 (REQUESTS).
"VAT" means value added tax as provided for in the Value Added Tax ▇▇▇
▇▇▇▇ and any other tax of a similar nature.
"VENDOR" means Hoechst AG.
"VENDOR MGG SHARES" means the shares representing two thirds of the
nominal value of the issued share capital of MGG, held by the Vendor at
the date of this Agreement.
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1.2 CONSTRUCTION
(a) Unless a contrary indication appears a reference in this
Agreement to:
(i) the "AGENT", an "ARRANGER", the "SECURITY TRUSTEE",
any "HEDGE COUNTERPARTY", any "FRONTING BANK" or any
"LENDER" or any other person shall be construed so as
to include it and any subsequent successors and
permitted transferees and assigns in accordance with
their respective interests;
(ii) a document being in the "AGREED FORM" is a reference
to a document which is either initialled as such (or
agreed in writing as such) on or before the Closing
Date for the purposes of identification by or on
behalf of the Obligor's Agent and the Arrangers or
Agent or is executed on or before the date of this
Agreement by any of the Obligors and the Arrangers or
Agent or, if not so executed or initialled (or so
agreed in writing), is in form and substance
reasonably satisfactory to the Agent;
(iii) "ASSETS" includes present and future properties,
revenues and rights of every description;
(iv) the "EUROPEAN INTERBANK MARKET" means the interbank
market for euro operating in Participating Member
States;
(v) 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;
(vi) "INDEBTEDNESS" includes any obligation (whether
incurred as principal or as surety) for the payment
or repayment of money, whether present or future,
actual or contingent;
(vii) a Lender's "PARTICIPATION", in relation to a Letter
of Credit or Bank Guarantee, shall be construed as a
reference to the rights and obligations of that
Lender in relation to that Letter of Credit or Bank
Guarantee as are expressly set out in this Agreement;
(viii) a "PERSON" includes any person, firm, company,
corporation, government, state or agency of a state
or any association, trust, fund or other entity or
partnership (whether or not having separate legal
personality) of two or more of the foregoing;
(ix) a "REGULATION" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation;
(x) a "WHOLLY-OWNED SUBSIDIARY" of a company or
corporation shall be construed as a reference to any
company or corporation more than 85% of the voting
and issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned
company or corporation;
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(xi) a provision of law is a reference to that provision
as amended or re-enacted; and
(xii) a time of day is a reference to London time.
(b) 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 remedied or waived.
(e) A Utilisation is requested by a Borrower if that Borrower
requests such Utilisation itself or the Obligor's Agent
requests such Utilisation expressly on behalf of that
Borrower.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"$" and "DOLLARS" denote lawful currency of the United States of
America, "(POUND)" and "STERLING" denotes lawful currency of the United
Kingdom, "EUR" and "EURO" means the single currency unit of the
Participating Member States, "DM" means the national currency unit of
Germany as at the date of this Agreement and "SWISS FRANCS" denote
lawful currency of Switzerland.
1.4 THIRD PARTY RIGHTS
(a) Except as expressly provided in a Finance Document, the terms
of a Finance Document may be enforced only by a party to it
and the operation of the Contracts (Rights of Third Parties)
▇▇▇ ▇▇▇▇ is excluded.
(b) Notwithstanding any provision of any Finance Document, the
Parties to a Finance Document do not require the consent of
any third party to rescind or vary any Finance Document at any
time.
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SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available the
Facilities referred to below to the Borrowers specified below in
relation to each such Facility:
(a) (to MGG, ▇▇▇▇▇▇ Griesheim Industries, Inc., any Treasury
Borrower and, during the Debtco Structure Period, Debtco) a
multicurrency term loan disposal facility in an aggregate
amount equal to the Total Term Disposal Facility Commitments;
(b) (to MGG and any Treasury Borrower and, during the Debtco
Structure Period, Debtco) a multicurrency term loan
refinancing facility in an aggregate amount equal to the Total
Term A Facility Commitments;
(c) (to ▇▇▇▇▇▇ Griesheim Industries, Inc.) a dollar term loan
refinancing facility in an aggregate amount equal to the Total
Term B Dollar Facility Commitments;
(d) (to MGG and any Treasury Borrower and, during the Debtco
Structure Period, Debtco) a euro term refinancing facility in
an aggregate amount equal to the Total Term B Euro Facility
Commitments;
(e) (to MGG and any Treasury Borrower and, during the Debtco
Structure Period, Debtco) a euro term loan refinancing
facility in an aggregate amount equal to the Total Term C Euro
Facility Commitments;
(f) (to ▇▇▇▇▇▇ Griesheim Industries, Inc.) a dollar term loan
refinancing facility in an aggregate amount equal to the Total
Term C Dollar Facility Commitments;
(g) (to all of the Borrowers) a multicurrency revolving loan,
letter of credit and guarantee facility in an aggregate amount
equal to the Total Revolving Facility I Commitments; and
(h) (to all of the Borrowers other than any US Borrower) a
multicurrency revolving loan, letter of credit and guarantee
facility in an aggregate amount equal to the Total Revolving
Facility II Commitments.
2.2 LENDERS' AND FRONTING BANKS' RIGHTS AND OBLIGATIONS
(a) The obligations of each Lender and each Fronting Bank under
the Finance Documents are several. Failure by a Lender 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 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 to a Lender or a Fronting Bank from an Obligor shall
be a separate and independent debt.
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(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 PURPOSE
(a) Each Borrower shall apply all amounts borrowed by it under the
Term Facilities either towards the refinancing of Existing
Indebtedness and the payment of the fees payable pursuant to
the terms of any Fee Letters and other expenses payable in
connection with the Finance Documents and the Mezzanine
Finance Documents or towards the making of Intra-Group Loans
the proceeds of which are to be applied to refinance Existing
Indebtedness or (during the period when the Term Facilities
have not been drawn or cancelled in full) towards the general
working capital requirements of the MGG Group provided that
the aggregate of the Base Currency Amounts of all Loans under
the Term Facilities used for such general working capital
purposes shall not exceed EUR 100,000,000. Amounts borrowed by
▇▇▇▇▇▇ Griesheim Industries, Inc. ("MGI") on the Closing Date
may be held initially in a specifically identified account of
MGI at The Chase Manhattan Bank and amounts borrowed by ▇▇▇▇▇▇
Finance S.A. on the Closing Date may be held initially in an
account of ▇▇▇▇▇▇ Finance S.A. which is secured in favour of
the Finance Parties under a Security Document, in each case
pending application within 5 Business Days of the Closing Date
for the purposes specified in the first sentence of this
paragraph (a). The Deemed Loan referred to in paragraph (d) of
Clause 9.11 (VOLUNTARY PREPAYMENT OF TERM FACILITY LOANS)
shall be used to prepay the Term Disposal Facility in the
manner referred to in such paragraph (d).
(b) Each Borrower shall apply all amounts borrowed by it and all
Letters of Credit and Bank Guarantees issued at its request
under Revolving Facility I towards the general corporate
purposes of the MGG Group.
(c) Each Borrower shall apply all amounts borrowed by it and all
Letters of Credit and Bank Guarantees issued at its request
under Revolving Facility II to finance or refinance
Non-Indemnified Unconsolidated Debt PROVIDED THAT a Borrower
shall be entitled to apply amounts borrowed by it and Letters
of Credit and Bank Guarantees issued at its request under
Revolving Facility II towards the general working capital
requirements of the MGG Group if the following conditions are
satisfied at the time of the first such application in
relation to any part of Revolving Facility II:
(i) the Agent has received 5 Business Days prior to such
time written confirmation from the Obligor's Agent
(together with relevant supporting evidence) that the
Total Non-Indemnified Unconsolidated Debt has been
permanently reduced (by reason of the expiry of a
guarantee or indemnity given by a member of the MGG
Group which is not to be renewed or as a result of
the disposal of the MGG Group's interest in a Joint
Venture or Unconsolidated Subsidiary or payment of a
sum under such a guarantee or indemnity by a member
of the MGG Group or otherwise but not by reason of a
payment from the proceeds of a Revolving Facility II
Loan or under a Letter of Credit or Bank Guarantee
issued under Revolving Facility II) by a specified
amount; and
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(ii) the reduction of Total Non-Indemnified Unconsolidated
Debt referred to in paragraph (i) above has not been
used to permit any previous such application and the
aggregate amount of (A) the amount to be borrowed and
(B) the face amount of such Guarantee or Letter of
Credit to be issued which are to be so applied is
equal to or less than the total amount of such
reduction.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed or Bank Guarantee or Letter of Credit issued pursuant to
this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
No Borrower may deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Part I of
Schedule 2 (CONDITIONS PRECEDENT) in form and substance satisfactory to
the Agent (acting reasonably). The Agent shall notify the Obligor's
Agent and the Lenders promptly upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
(a) In the case of any Closing Utilisation, the Lenders and the
relevant Fronting Bank 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:
(i) no Closing Event of Default iS continuing or would
result from the proposed Closing Utilisation; and
(ii) the Acquisition Closing Conditions were satisfied on
the Closing Date without being partially or entirely
waived by the Company or MGG or, notwithstanding the
Acquisition Closing Conditions not having been so
satisfied without being partially or entirely waived
by the Company or MGG (except in accordance with
Clause 23.24 (AMENDMENTS)), the Company is obliged
pursuant to the terms of the Business Combination
Agreement to consummate the MGG Acquisition on the
Closing Date;
(iii) the Closing Representations to be made or deemed to
be made by the Obligor's Agent and each Obligor which
is then a Party are true in all material respects.
(b) In the case of any Utilisation (other than a Closing
Utilisation), the Lenders and the relevant Fronting Bank 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:
(i) in the case of a Rollover Loan, no Event of Default
is continuing or would result from the proposed
Rollover Loan and, in the case of any other Loan, a
Letter of Credit or a Bank Guarantee, no Default iS
continuing or would result from the proposed Loan,
Letter of Credit or Bank Guarantee; and
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(ii) the Repeating Representations to be made or deemed to
be made by the Obligor's Agent and each Obligor which
is then a Party are true in all material respects.
(c) The Lenders will only be obliged to comply with paragraph
(a)(iv) of Clause 6.3 (CHANGE OF CURRENCY) if, on the first
day of an Interest Period, no Default is continuing or would
result from the change of currency and the Repeating
Representations to be made by each Obligor are true in all
material respects.
(d) In relation to a proposed Letter of Credit or Bank Guarantee,
the relevant Fronting Bank will only be obliged to comply with
Clause 5.5 (COMPLETION OF LETTERS OF CREDIT) if the relevant
Fronting Bank and the Agent have approved the terms of the
Letter of Credit or Bank Guarantee (which, unless the Agent
otherwise agrees in writing, shall be substantially in the
form set out in Schedule 11 (FORM OF BANK GUARANTEE) or
Schedule 12 (FORM OF LETTER OF CREDIT)).
4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES AND THE EURO UNIT
(a) A currency will constitute an Optional Currency in relation to
a Loan, Letter of Credit or Bank Guarantee if:
(i) it is readily available in the amount required and
freely convertible into the Base Currency in the
Relevant Interbank Market on the Quotation Day and
the Utilisation Date for that Loan, Letter of Credit
or Bank Guarantee; and
(ii) it is dollars or sterling or Swiss Francs or euro or
has been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to
receipt by the Agent of the relevant Utilisation
Request or Selection Notice for that Loan, Letter of
Credit or Bank Guarantee, save that dollars shall not
be an Optional Currency in relation to a Term
Disposal Facility Loan and euro shall not be an
Optional Currency in relation to any Term A Facility
Loan, Revolving Facility Loan, Letter of Credit or
Bank Guarantee.
(b) If the Agent has received a written request from the Obligor's
Agent for a currency to be approved under paragraph (a)(ii)
above, the Agent will confirm to the Obligor's Agent by the
Specified Time:
(i) whether or not the Lenders have granted their
approval; and
(ii) if approval has been granted, the minimum amount for
any subsequent Utilisation in that currency, which
shall be a round number which is approximately the
equivalent in that currency of EUR5,000,000.
(c) If a Loan, Letter of Credit or Bank Guarantee is to be
denominated in euros it will only be made available in the
euro unit, deutschmarks or any other national currency units
of the euro agreed by the Majority Lenders.
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4.4 MAXIMUM NUMBER OF LOANS, LETTERS OF CREDIT OR BANK GUARANTEES
(a) A Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation:
(i) fifteen or more Term Disposal Facility Loans would be
outstanding;
(ii) fifteen or more Term A Facility Loan would be
outstanding;
(iii) five or more Term B Euro Facility Loans would be
outstanding;
(iv) five or more Term B Dollar Facility Loans would be
outstanding;
(v) five or more Term C Euro Facility Loans would be
outstanding;
(vi) five or more Term C Dollar Facility Loans would be
outstanding;
(vii) ten or more Revolving Facility I Loans would be
outstanding; or
(viii) ten or more Revolving Facility II Loans would be
outstanding.
(b) A Borrower may not request that a Term Facility Loan be
divided if, as a result of the proposed division, ten or more
Loans under the relevant Term Facility would be outstanding.
(c) Any Loan made by a single Lender under Clause 6.2
(UNAVAILABILITY OF A CURRENCY) shall not be taken into account
in this Clause 4.4.
(d) The above provisions of this Clause 4.4 shall not apply to any
Utilisation Request delivered prior to the end of the first
one month Interest Period relating to any Loan.
4.5 ORDER OF DRAWING OF FACILITIES
(a) The Facilities may only be drawn in the following order, so
that no Utilisation Request may be delivered in relation to
any Facility until each of the Facilities referred to above it
in the following list has either been drawn in full or will
have been drawn in full prior to or on the proposed
Utilisation Date:
(i) first, the Term C Euro Facility, the Term C Dollar
Facility, the Term B Euro Facility and the Term B
Dollar Facility;
(ii) second, the Term A Facility and Term Disposal
Facility;
(iii) third, the Revolving Facilities.
(b) Notwithstanding the above paragraph (a):
(i) Utilisations ("RELEVANT UTILISATIONS") by way of
Letters of Credit and/or Bank Guarantees may be
issued under the Revolving Facilities prior to the
Facilities referred to in paragraph (a)(ii) above
being drawn in full PROVIDED THAT the aggregate of
the Base Currency Amounts of all such Relevant
Utilisations does not exceed EUR25,000,000; and
(ii) Term A Loans ("RELEVANT LOANS") may be drawn prior to
the Facilities referred to in paragraph (a)(i) above
being drawn in full PROVIDED THAT the
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aggregate Base Currency Amounts of all such Relevant
Loans does not exceed EUR 100,000,000.
4.6 SIMULTANEOUS DRAWDOWN OF CERTAIN FACILITIES
No Loan shall be made under the Term C Euro Facility or the Term C
Dollar Facility (the "FIRST RELEVANT FACILITIES") unless Loans are made
simultaneously under the other First Relevant Facility so that the
Available Facility in relation to each First Relevant Facility is
reduced rateably.
4.7 DRAWING OF TERM C FACILITIES
The Term C Dollar Facility and the Term C Euro Facility may each only be
drawn in no more than two amounts.
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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 Agent of a duly completed Utilisation Request no later than the
Specified Time.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable (unless it is a
Utilisation Request solely requesting the issue of a Letter of
Credit or Bank Guarantee which is withdrawn or revoked by
written notice to the Agent and the relevant Fronting Bank
before that Letter of Credit or Bank Guarantee is issued by
that Fronting Bank) and will not be regarded as having been
duly completed unless:
(i) it identifies the Facility to be utilised and, if it
is a Revolving Facility, whether it is to be utilised
by way of a Loan or a Bank Guarantee or a Letter of
Credit;
(ii) the proposed Utilisation Date is a Business Day
within the Availability Period;
(iii) the amount of the Utilisation complies with Clause
5.3 (CURRENCY AND AMOUNT); and
(iv) the proposed Interest Period or Term (as the case may
be) complies with Clause 11 (INTEREST PERIODS AND
TERMS).
(b) Only one Utilisation may be requested in each Utilisation
Request.
(c) During the first 90 days after the Closing Date, no more than
10 and thereafter no more than 3 Utilisation Requests may be
delivered to the Agent on any one Business Day.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be the
Base Currency or an Optional Currency, except that in the case
of the Dollar Facilities it must be dollars and, in the case
of the Euro Facilities, it must be euros.
(b) The amount of the proposed Loan, Letter of Credit or Bank
Guarantee must be an amount whose Base Currency Amount is not
more than the Available Facility and which is:
(i) if the currency selected is the Base Currency, a
minimum of EUR5,000,000 for each Facility (other than
any Dollar Facility and the Term Disposal Facility)
(or, in relation to a Letter of Credit or Bank
Guarantee, EUR1,000,000 or such lesser amount agreed
to by the Fronting Bank) or (in relation to any
Dollar Facility or the Term Disposal Facility) a
minimum of $5,000,000 or in each case, if less, the
Available Facility;
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(ii) if the currency selected is dollars, a minimum of
$5,000,000 for each Facility (or, in relation to a
Letter of Credit or Bank Guarantee, $1,000,000 or
such lesser amount agreed to by the Fronting Bank)
or, if less, the Available Facility;
(iii) if the currency selected is sterling, a minimum of
(pound)5,000,000 for each Facility (or, in relation
to a Letter of Credit or Bank Guarantee,
(pound)1,000,000 or such lesser amount as may be
agreed to by the Fronting Bank) or, if less, the
Available Facility;
(iv) if the currency selected is an Optional Currency
other than dollars or sterling, the minimum amount
specified by the Agent pursuant to paragraph (b)(ii)
of Clause 4.3 (CONDITIONS RELATING TO OPTIONAL
CURRENCIES AND THE EURO UNIT) (or, in relation to a
Letter of Credit or Bank Guarantee, such minimum
amount agreed to by the Fronting Bank) or, if less,
the Available Facility; or
(v) (in respect of a Letter of Credit or Bank Guarantee
in relation to any Revolving Facility) an amount
which, when aggregated with the amount of maximum
actual and contingent liabilities of the Lenders in
respect of all other outstanding Letters of Credit
and Bank Guarantees at such time in relation to that
Revolving Facility, does not exceed EUR75,000,000 (in
the case of Revolving Facility I) or EUR50,000,000
(in the case of Revolving Facility II).
5.4 LENDERS' AND FRONTING BANKS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met:
(i) each Lender shall make its participation in each Loan
available through its Facility Office; and
(ii) each Fronting Bank shall issue each Letter of Credit
and Bank Guarantee through its Facility Office.
(b) The amount of each Lender's participation in each Loan, Letter
of Credit and Bank Guarantee will be equal to the proportion
borne by its Available Commitment to the Available Facility
immediately prior to making such Loan or issuing such Letter
of Credit or Bank Guarantee.
(c) The Agent shall notify each Lender of the amount, currency and
the Base Currency Amount of each Loan, Letter of Credit and
Bank Guarantee at the Specified Time.
5.5 COMPLETION OF LETTERS OF CREDIT
The relevant Fronting Bank is authorised to issue any Letter of Credit
or Bank Guarantee pursuant to Clause 5 (UTILISATION) by:
(a) completing the issue date and the proposed Expiry Date of that
Letter of Credit or Bank Guarantee; and
(b) executing and delivering that Letter of Credit or Bank
Guarantee to the relevant recipient on the Utilisation Date.
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5.6 RENEWAL OF A LETTER OF CREDIT OR BANK GUARANTEE
(a) No later than the Specified Time before the Expiry Date of a
Letter of Credit or Bank Guarantee the relevant Borrower may,
by written notice to the Agent, request that the Term of that
Letter of Credit or Bank Guarantee be extended.
(b) The Finance Parties shall treat the request in the same way as
a Utilisation Request for a Letter of Credit or, as the case
may be, Bank Guarantee in the amount and maturity of the
Letter of Credit or Bank Guarantee (as to be extended).
(c) The terms of each renewed Letter of Credit or Bank Guarantee
shall be the same as those of the relevant Letter of Credit or
Bank Guarantee immediately prior to its renewal, save that its
Term shall commence on the date which was the Expiry Date of
that Letter of Credit or Bank Guarantee immediately prior to
its renewal and shall end on the proposed Expiry Date
specified in that request.
(d) The relevant Fronting Bank is authorised to amend any Letter
of Credit or Bank Guarantee pursuant to that request if the
conditions set out in this Agreement have been complied with.
5.7 RESTRICTIONS ON PARTICIPATION IN LETTERS OF CREDIT
If at any time prior to the issue of a Letter of Credit any Lender is
prohibited by law or pursuant to any request from or requirement of any
central bank or other fiscal, monetary or other authority from having
any right or obligation under this Agreement in respect of a Letter of
Credit, that Lender shall notify the Agent on or before the Business Day
prior to the proposed Utilisation Date and:
(a) the maximum actual and contingent liabilities of the relevant
Fronting Bank under that Letter of Credit shall be reduced by
an amount equal to an amount which would have been the amount
of that Lender's L/C Proportion of that Letter of Credit if
the prohibition had not occurred;
(b) the L/C Proportion of that Lender in relation to that Letter
of Credit shall be nil; and
(c) that Lender's Available Commitment in respect of the relevant
Revolving Facility shall be reduced by an amount equal to an
amount which would have been the amount of that Lender's L/C
Proportion of the Letter of Credit if the prohibition had not
occurred.
5.8 RESTRICTIONS ON PARTICIPATION IN BANK GUARANTEES
If at any time prior to the issue of a Bank Guarantee any Lender is
prohibited by law or pursuant to any request from or requirement of any
central bank or other fiscal, monetary or other authority from having
any right or obligation under this Agreement in respect of a Bank
Guarantee, that Lender shall notify the Agent on or before the Business
Day prior to the proposed Utilisation Date and:
(a) the maximum actual and contingent liabilities of the relevant
Fronting Bank under that Bank Guarantee shall be reduced by an
amount equal to an amount which would have been the amount of
that Lender's Guarantee Proportion of that Bank Guarantee if
the prohibition had not occurred;
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(b) the Guarantee Proportion of that Lender in relation to that
Bank Guarantee shall be nil; and
(c) that Lender's Available Commitment in respect of the relevant
Revolving Facility shall be reduced by an amount equal to an
amount which would have been the amount of that Lender's
Guarantee Proportion of the Bank Guarantee if the prohibition
had not occurred.
6. OPTIONAL CURRENCIES
6.1 SELECTION OF CURRENCY
(a) A Borrower (or the Obligor's Agent on behalf of a Borrower)
shall select the currency of a Loan, Letter of Credit or Bank
Guarantee:
(i) (in the case of an initial Utilisation) in a
Utilisation Request PROVIDED THAT in respect of Loans
to be made on the Closing Date only euros and dollars
and sterling may be selected; and
(ii) (afterwards in relation to a Term Facility Loan
(other than a Dollar Facility Loan) made to it) in a
Selection Notice which must be delivered by the same
Specified Time as if it were a Utilisation Request
for such a Loan to be made on the date of such
conversion in the currency into which it wishes to
convert such Loan.
(b) If a Borrower (or the Obligor's Agent on behalf of a Borrower)
fails to issue a Selection Notice by the time specified in
paragraph (a)(ii) above in relation to a Term Facility Loan,
that Term Facility Loan will remain denominated for its next
Interest Period in the same currency in which it is then
outstanding.
(c) If a Borrower (or the Obligor's Agent on behalf of a Borrower)
issues a Selection Notice requesting a change of currency and
the first day of the requested Interest Period is not a
Business Day for the new currency, the Agent shall promptly
notify the Borrower and the Lenders and the Loan will remain
in the existing currency (with Interest Periods running from
one Business Day until the next Business Day) until the next
day which is a Business Day for both currencies, on which day
the requested Interest Period will begin.
(d) A Dollar Facility Loan may only be denominated in dollars and
a Euro Facility Loan may only be denominated in euros.
6.2 UNAVAILABILITY OF A CURRENCY
If before the Specified Time on any Quotation Day:
(a) the Agent has received notice from a Lender that the Optional
Currency requested is not readily available to it in the
amount required; or
(b) a Lender notifies the Agent that compliance with its
obligation to participate in a Loan in the proposed Optional
Currency would contravene a law or regulation applicable to
it,
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the Agent will give notice to the relevant Borrower to that effect by
the Specified Time on that day. In this event, any Lender that gives
notice pursuant to this Clause 6.2 will be required to participate in
the Loan in the Base Currency (in an amount equal to that Lender's
proportion of the Base Currency Amount, or in respect of a Rollover
Loan, an amount equal to that Lender's proportion of the Base Currency
Amount of the maturing Revolving Facility Loan that is due to be repaid)
and its participation will be treated as a separate Loan denominated in
the Base Currency during that Interest Period.
6.3 CHANGE OF CURRENCY
(a) If a Term Facility Loan is to be denominated in different
currencies during two successive Interest Periods:
(i) if the currency for the second Interest Period is an
Optional Currency, the amount of the Loan in that
Optional Currency will be calculated by the Agent as
the amount of that Optional Currency equal to the
Base Currency Amount of the Loan at the Agent's Spot
Rate of Exchange at the Specified Time;
(ii) if the currency for the second Interest Period is the
Base Currency, the amount of the Loan will be equal
to the Base Currency Amount;
(iii) (unless the Agent and the Borrower agree otherwise in
accordance with paragraph (b) below) the Borrower
that has borrowed the Loan shall repay it on the last
day of the first Interest Period in the currency in
which it was denominated for that Interest Period;
and
(iv) (subject to Clause 4.2 (FURTHER CONDITIONS
PRECEDENT)) the Lenders shall re-advance the Loan in
the new currency in accordance with Clause 6.5
(AGENT'S CALCULATIONS).
(b) If the Agent and the Borrower that has borrowed the relevant
Term Facility Loan agree, the Agent shall:
(i) apply the amount paid to it by the Lenders pursuant
to paragraph (a)(iv) above (or so much of that amount
as is necessary) in or towards purchase of an amount
in the currency in which the relevant Term Facility
Loan is outstanding for the first Interest Period;
and
(ii) use the amount it purchases in or towards
satisfaction of the relevant Borrower's obligations
under paragraph (a)(iii) above.
(c) If the amount purchased by the Agent pursuant to paragraph
(b)(i) above is less than the amount required to be repaid by
the relevant Borrower, the Agent shall promptly notify that
Borrower and that Borrower shall, on the last day of the first
Interest Period, pay an amount to the Agent (in the currency
of the outstanding relevant Term Facility Loan for the first
Interest Period) equal to the difference.
(d) If any part of the amount paid to the Agent by the Lenders
pursuant to paragraph (a)(iv) above is not needed to purchase
the amount required to be repaid by the relevant Borrower, the
Agent shall promptly notify that Borrower and pay that
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Borrower, on the last day of the first Interest Period that
part of that amount (in the new currency).
6.4 SAME OPTIONAL CURRENCY DURING SUCCESSIVE INTEREST PERIODS
(a) If a Term Facility Loan (other than a Dollar Facility Loan or
a Euro Facility Loan) is to be denominated in the same
Optional Currency during two successive Interest Periods, the
Agent shall calculate the amount of such Term Facility Loan in
the Optional Currency for the second of those Interest Periods
(by calculating the amount of Optional Currency equal to the
Base Currency Amount of that Term Facility Loan at the Agent's
Spot Rate of Exchange at the Specified Time) and (subject to
paragraph (b) below):
(i) if the amount calculated is less than the existing
amount of that Term Facility Loan in the Optional
Currency during the first Interest Period, promptly
notify the Borrower that has borrowed that Term
Facility Loan and that Borrower shall pay, on the
last day of the first Interest Period, an amount
equal to the difference; or
(ii) if the amount calculated is more than the existing
amount of that Term Facility Loan in the Optional
Currency during the first Interest Period, promptly
notify each Lender and, if no Event of Default is
continuing, each Lender shall, on the last day of the
first Interest Period, pay its participation in an
amount equal to the difference.
(b) If the calculation made by the Agent pursuant to paragraph (a)
above shows that the amount of the relevant Term Facility Loan
in the Optional Currency has increased or decreased by less
than 5 per cent. compared to its Base Currency Amount, no
notification shall be made by the Agent and no payment shall
be required under paragraph (a) above.
6.5 AGENT'S CALCULATIONS
(a) All calculations made by the Agent pursuant to this Clause 6
will take into account any repayment, prepayment,
consolidation or division of Term Facility Loans to be made on
the last day of the first Interest Period.
(b) Each Lender's participation in a Loan will, subject to
paragraph (a) above, be determined in accordance with
paragraph (b) of Clause 5.4 (LENDERS' AND FRONTING BANKS'
PARTICIPATION).
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 REPAYMENT OF TERM DISPOSAL FACILITY LOANS
(a) Unless the terms of this Agreement require such to be repaid
at an earlier date, each Borrower shall repay the Term
Disposal Facility Loans made to it in full on the Term
Disposal Facility Repayment Date.
(b) No Borrower may reborrow any part of the Term Disposal
Facility which is repaid.
7.2 REPAYMENT OF TERM A FACILITY LOANS
(a) Unless the terms of this Agreement require such to be repaid
at an earlier date, each Borrower shall repay the Term A
Facility Loans made to it in instalments by repaying on each
Term A Facility Repayment Date an amount which reduces the
Base Currency Amount of the outstanding Term A Facility Loans
by an amount equal to the relevant percentage of the Base
Currency Amount of all the Term A Facility Loans borrowed by
that Borrower as at the close of business in London on the
last day of the relevant Availability Period in relation to
the Term A Facility as set out in the table below:
----------------------------------------- -----------------------------------------
REPAYMENT DATE REPAYMENT INSTALMENT
(AS PERCENTAGE OF ALL TERM A FACILITY
LOANS AS AT CLOSE OF BUSINESS IN LONDON
ON THE LAST DAY OF THE RELEVANT
AVAILABILITY PERIOD)
========================================= =========================================
20 December 2001 1.5%
----------------------------------------- -----------------------------------------
20 April 2002 1.5%
----------------------------------------- -----------------------------------------
20 October 2002 2.00%
----------------------------------------- -----------------------------------------
20 April 2003 2.5%
----------------------------------------- -----------------------------------------
20 October 2003 5.5%
----------------------------------------- -----------------------------------------
20 April 2004 6.0%
----------------------------------------- -----------------------------------------
20 October 2004 8.5%
----------------------------------------- -----------------------------------------
20 April 2005 7.5%
----------------------------------------- -----------------------------------------
20 October 2005 10.0%
----------------------------------------- -----------------------------------------
20 April 2006 10.0%
----------------------------------------- -----------------------------------------
20 October 2006 10.0%
----------------------------------------- -----------------------------------------
20 April 2007 10.0%
----------------------------------------- -----------------------------------------
20 October 2007 12.5%
----------------------------------------- -----------------------------------------
20 April 2008 12.5%
----------------------------------------- -----------------------------------------
(b) If, in relation to a Term A Facility Repayment Date, the
aggregate outstanding amount of the Term A Facility Loans made
to the Borrowers exceeds the Term A Facility Repayment
Instalment to be repaid by the Borrowers, the Obligor's Agent
may, if it gives the Agent not less than five Business Days'
prior notice, select which of those Term A Facility Loans will
be wholly or partially repaid so that the Term A
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Facility Repayment Instalment is repaid on the relevant Term A
Facility Repayment Date in full.
(c) If the Obligor's Agent fails to deliver a notice to the Agent
in accordance with paragraph (b) above, the Agent shall select
the Term A Facility Loans to be wholly or partially repaid.
(d) Any repayment or prepayment of a Term A Facility Loan
denominated in an Optional Currency shall reduce the amount of
that Term A Facility Loan by the amount of that Optional
Currency repaid.
(e) Save as provided in Clause 10.3 (MARGIN CHANGES) or paragraph
(d) of Clause 9.11 (VOLUNTARY PREPAYMENT OF TERM FACILITY
LOANS), no Borrower may reborrow any part of Term A Facility
which is repaid.
7.3 REPAYMENT OF TERM B DOLLAR FACILITY LOANS
(a) Unless the terms of this Agreement require such to be repaid
at an earlier date, each Borrower shall repay the Term B
Dollar Facility Loans made to it in instalments by repaying on
each Term B Facility Repayment Date an amount which reduces
the outstanding Term B Dollar Facility Loans by an amount
equal to 50% of all the Term B Dollar Facility Loans borrowed
by that Borrower as at close of business on the last Business
Day of the relevant Availability Period.
(b) If, in relation to a Term B Facility Repayment Date, the
aggregate outstanding amount of the Term B Dollar Facility
Loans made to the Borrowers exceeds the Term B Dollar Facility
Repayment Instalment to be repaid by the Borrowers, the
Obligor's Agent may, if it gives the Agent not less than five
Business Days' prior notice, select which of those Term B
Dollar Facility Loans will be wholly or partially repaid so
that the Term B Dollar Facility Repayment Instalment is repaid
on the relevant Term B Facility Repayment Date in full.
(c) If the Obligor's Agent fails to deliver a notice to the Agent
in accordance with paragraph (b) above, the Agent shall select
the Term B Dollar Facility Loans to be wholly or partially
repaid.
(d) No Borrower may reborrow any part of the Term B Dollar
Facility which is repaid.
7.4 REPAYMENT OF TERM B EURO FACILITY LOANS
(a) Unless the terms of this Agreement require such to be repaid
at an earlier date, each Borrower shall repay the Term B Euro
Facility Loans made to it in instalments by repaying on each
Term B Facility Repayment Date an amount which reduces the
outstanding Term B Euro Facility Loans by an amount equal to
50% of all the Term B Euro Facility Loans borrowed by that
Borrower as at close of business on the last Business Day of
the relevant Availability Period.
(b) If, in relation to a Term B Facility Repayment Date, the
aggregate outstanding amount of the Term B Euro Facility Loans
made to the Borrowers exceeds the Term B Euro Facility
Repayment Instalment to be repaid by the Borrowers, the
Obligor's Agent may, if it gives the Agent not less than five
Business Days' prior notice, select which of those Term B Euro
Facility Loans will be wholly or partially repaid so that the
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Term B Euro Facility Repayment Instalment is repaid on the
relevant Term B Facility Repayment Date in full.
(c) If the Obligor's Agent fails to deliver a notice to the Agent
in accordance with paragraph (b) above, the Agent shall select
the Term B Euro Facility Loans to be wholly or partially
repaid.
(d) Save as provided in Clause 10.3 (MARGIN CHANGES), no Borrower
may reborrow any part of the Term B Euro Facility which is
repaid.
7.5 REPAYMENT OF TERM C EURO FACILITY LOANS
(a) Unless the terms of this Agreement require such to be repaid
at an earlier date, each Borrower shall repay the Term C Euro
Facility Loans made to it in instalments by repaying on each
Term C Facility Repayment Date an amount which reduces the
outstanding Term C Euro Facility Loans by an amount equal to
50% of all the Term C Euro Facility Loans borrowed by the
Borrowers as at close of business on the last Business Day of
the relevant Availability Period.
(b) If, in relation to a Term C Facility Repayment Date, the
aggregate outstanding amount of the Term C Euro Facility Loans
made to the Borrowers exceeds the Term C Euro Facility
Repayment Instalment to be repaid by the Borrowers, the
Obligor's Agent may, if it gives the Agent not less than five
Business Days' prior notice, select which of those Term C Euro
Facility Loans will be wholly or partially repaid so that the
Term C Euro Facility Repayment Instalment is repaid on the
relevant Term C Facility Repayment Date in full.
(c) If the Obligor's Agent fails to deliver a notice to the Agent
in accordance with paragraph (b) above, the Agent shall select
the Term C Euro Facility Loans to be wholly or partially
repaid.
(d) No Borrower may reborrow any part of the Term C Euro Facility
which is repaid.
7.6 REPAYMENT OF TERM C DOLLAR FACILITY LOANS
(a) Unless the terms of this Agreement require such to be repaid
at an earlier date, each US Borrower shall repay the Term C
Dollar Facility Loans made to it in instalments by repaying on
each Term C Facility Repayment Date an amount which reduces
the outstanding Term C Dollar Facility Loans by an amount
equal to 50% of all the Term C Dollar Facility Loans borrowed
by that US Borrower as at close of business in London on the
last day of the relevant Availability Period.
(b) If, in relation to a Term C Facility Repayment Date, the
aggregate outstanding amount of the Term C Dollar Facility
Loans made to the US Borrowers exceeds the Term C Dollar
Facility Repayment Instalment to be repaid by the US
Borrowers, the Obligor's Agent may, if it gives the Agent not
less than five Business Days' prior notice, select which of
those Term C Dollar Facility Loans will be wholly or partially
repaid so that the Term C Facility Repayment Instalment is
repaid on the relevant Term C Facility Repayment Date in full.
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(c) If the Obligor's Agent fails to deliver a notice to the Agent
in accordance with paragraph (b) above, the Agent shall select
the Term C Dollar Facility Loans to be wholly or partially
repaid.
(d) No Borrower may reborrow any part of the Term C Dollar
Facility which is repaid.
7.7 REPAYMENT OF REVOLVING FACILITY LOANS
Each Borrower which has drawn a Revolving Facility Loan shall repay that
Loan on the last day of its Interest Period.
8. BORROWER'S LIABILITIES IN RELATION TO LETTERS OF CREDIT AND BANK
GUARANTEES
8.1 DEMANDS UNDER LETTERS OF CREDIT AND BANK GUARANTEES
If a demand is made under a Letter of Credit or a Bank Guarantee or a
Fronting Bank incurs in connection with a Letter of Credit or a Bank
Guarantee any other liability, cost, claim, loss or expense which is to
be reimbursed pursuant to this Agreement, the relevant Fronting Bank
shall promptly notify the Agent of the amount of such demand or such
liability, cost, claim, loss or expense and the Letter of Credit or, as
the case may be, Bank Guarantee to which it relates and the Agent shall
promptly make demand upon the relevant Borrower in accordance with this
Agreement and notify the Obligor's Agent and the Lenders.
8.2 BORROWERS' INDEMNITY TO FRONTING BANKS
Each Borrower shall irrevocably and unconditionally as a primary
obligation indemnify (within three Business Days of demand of the Agent)
any Fronting Bank which has issued a Letter of Credit or a Bank
Guarantee at the request of such Borrower against:
(a) any sum paid by that Fronting Bank in accordance with the
provisions of such Letter of Credit or Bank Guarantee or due
and payable by that Fronting Bank under such Letter of Credit
or, as the case may be, Bank Guarantee; and
(b) all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from that
Fronting Bank under such Letter of Credit or Bank Guarantee or
in connection with any such Letter of Credit or Bank
Guarantee), claims, losses and expenses which that Fronting
Bank may at any time incur or sustain in connection with or
arising out of any such Letter of Credit or Bank Guarantee
PROVIDED THAT any payment under such Letter of Credit or Bank
Guarantee shall have been made in compliance with the terms
thereof.
8.3 BORROWERS' INDEMNITY TO LENDERS
Each Borrower shall irrevocably and unconditionally as a primary
obligation indemnify (on demand of the Agent) each Lender against, in
respect of each Letter of Credit and Bank Guarantee issued at such
Borrower's request:
(a) any sum paid by that Lender in accordance with the provisions
hereof or due and payable by that Lender (whether under Clause
28.1 (LENDERS' INDEMNITY) or otherwise) in connection with
such Letter of Credit or Bank Guarantee; and
(b) all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from that
Lender in connection with such Letter of Credit or
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Bank Guarantee), claims, losses and expenses which that Lender
may at any time incur or sustain in connection with any such
Letter of Credit or Bank Guarantee PROVIDED THAT any payment
under such Letter of Credit or Bank Guarantee shall have been
made in compliance with the terms thereof.
8.4 PRESERVATION OF RIGHTS
Neither the obligations of the Borrowers set out in this Clause 8 nor
the rights, powers and remedies conferred on any Fronting Bank or Lender
by this Agreement or by law shall be discharged, impaired or otherwise
affected by:
(a) the winding-up, dissolution, administration or re-organisation
of the relevant Fronting Bank, any Lender or any other person
or any change in its status, function, control or ownership;
(b) any of the obligations of the relevant Fronting Bank, any
Lender or any other person under this Agreement, any Letter of
Credit, any Bank Guarantee or any other security taken in
respect of its obligations under this Agreement or otherwise
in connection with a Letter of Credit or Bank Guarantee being
or becoming illegal, invalid, unenforceable or ineffective in
any respect;
(c) time or other indulgence being granted or agreed to be granted
to the relevant Fronting Bank, any Lender or any other person
in respect of its obligations under this Agreement or under or
in connection with a Letter of Credit or Bank Guarantee or
under any other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of that Fronting Bank, any Lender or any other
person under a Letter of Credit, Bank Guarantee or this
Agreement;
(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 Borrowers set out in this Clause 8 or
any of the rights, powers or remedies conferred upon that
Fronting Bank or any Lender by this Agreement or by law.
The obligations of each Borrower set out in this Clause 8 shall be in
addition to and independent of every other security which any Fronting
Bank or any Lender may at any time hold in respect of the Borrowers'
obligations under this Agreement.
8.5 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Borrower and a Fronting Bank or a
Lender shall be conditional upon no security or payment to that Fronting
Bank or Lender by that Borrower, or any other person on behalf of that
Borrower, being avoided or reduced by virtue of any laws relating to
bankruptcy, insolvency, liquidation or similar laws of general
application and, if any such security or payment is so avoided or
reduced, that Fronting Bank or Lender shall be entitled to recover the
value or amount of such security or payment from such Borrower
subsequently as if such settlement or discharge had not occurred.
8.6 RIGHT TO MAKE PAYMENTS UNDER LETTERS OF CREDIT AND BANK GUARANTEES
Each Fronting Bank shall be entitled to make any payment in accordance
with the terms of the relevant Letter of Credit or, as the case may be,
Bank Guarantee without any reference to or
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further authority from the Obligor's Agent, the Borrowers or any other
investigation or enquiry. Each Borrower irrevocably authorises each
Fronting Bank to comply with any demand under a Letter of Credit or Bank
Guarantee which is valid on its face.
9. PREPAYMENT AND CANCELLATION
9.1 ILLEGALITY
If, at any time, it is unlawful in any jurisdiction for a Lender or
Fronting Bank to perform any of its obligations as contemplated by this
Agreement or to fund, issue or participate in any Loan, Letter of Credit
or Bank Guarantee:
(a) that Lender shall promptly notify the Agent upon becoming
aware of that event;
(b) upon the Agent notifying the Obligor's Agent, the Commitment
of that Lender will be immediately cancelled;
(c) each Borrower shall, on the last day of the Interest Period
for each Loan or Term for each Letter of Credit or Bank
Guarantee occurring after the Agent has notified the Obligor's
Agent or, if earlier, the date specified by the Lender or
Fronting Bank in the notice delivered to the 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
it; and
(ii) ensure that the liabilities of that Lender or Fronting
Bank under or in respect of each Letter of Credit and
Bank Guarantee issued at the request of such Borrower
are reduced to zero or otherwise secured by providing
Cash Collateral in an amount equal to such Lender's L/C
Proportion of those Letters of Credit, Guarantee
Proportion of those Bank Guarantees or, as the case may
be, that Fronting Bank's maximum actual and contingent
liabilities under those Letter of Credit and Bank
Guarantees in the currency or currencies of those
Letters of Credit and Bank Guarantees.
9.2 CHANGE OF CONTROL
If after the Closing Date there is a Change of Control:
(a) the Obligor's Agent shall promptly notify the Agent upon
becoming aware of that event; and
(b) the Obligor's Agent shall procure that the Outstandings are
immediately and permanently prepaid in full and the Facilities
immediately cancelled,
PROVIDED THAT:
(1) if the Company ceases to own 100% of the issued share
capital of Newco 2 as a result of, and on the terms of,
the transactions expressly contemplated by the Business
Combination Agreement relating to the transfer of 66?%
of the shares in Newco 2 to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, for a
period no longer than 90 days (the "POSTPONED CONTROL
PERIOD") then during the Postponed Control Period only
the Company shall not be regarded for the purposes of
the definition of Change of Control in Clause 1.1
(DEFINITIONS) to have ceased to own (directly or
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indirectly) 100% of the issued share capital in Newco 2
or MGG or (if it is during the Debtco Structure Period)
Debtco; and
(2) no Change of Control under paragraph (e) of the
definition of Change of Control in Clause 1.1
(DEFINITIONS) shall arise as a result of Newco 2 not
owning 100% of the issued share capital of MGG if at
such time Newco 2 owns 66 2/3% of the issued share
capital of MGG and MIG has contributed the Family MGG
Shares to Newco 2 in accordance with the Contribution
Agreement set out in Annex 1.1(b) to the Shareholders'
Agreement but such contribution is not yet effective
pending the registration of the relevant increase of
share capital of Newco 2 by the relevant German court.
9.3 FLOTATION OR SALE
The Obligor's Agent shall procure that the Outstandings are immediately
and permanently prepaid in full upon the occurrence of a Sale or a
Flotation and the Facilities immediately cancelled.
9.4 EXCESS CASH FLOW
The Obligor's Agent shall ensure that after delivery of the most recent
audited financial statements of the Newco 2 Group pursuant to paragraph
(a) of Clause 21.1 (FINANCIAL STATEMENTS), commencing with the financial
statements delivered in respect of the calendar year ending 31 December
2001, 75 per cent.(or, if the Leverage Ratio for the calendar year to
which such financial statements relate is less than 4:1, 50 per cent.)
of Excess Cash Flow for the calendar year to which such financial
statements relate (less the aggregate amount by which the Term
Facilities have been prepaid pursuant to Clause 9.11 (VOLUNTARY
PREPAYMENT OF TERM FACILITY LOANS) during such calendar year is applied
in repayment of the outstanding Loans in accordance with Clause 9.8
(APPLICATION OF PREPAYMENTS), such repayment in relation to each Loan to
be repaid to be made on the last day of the Interest Period current at
the date of delivery of such financial statements of each such Loan due
to be repaid or such earlier date as the Obligor's Agent may elect.
Without in any way affecting the obligations of the Obligor's Agent
under this Clause, the Agent agrees that it shall notify the Obligor's
Agent as soon as reasonably practicable after receipt of the relevant
financial statements and their accompanying Compliance Certificate and
Auditors Report of the details of the application of the repayment
required under this Clause and the dates on which such application is to
be made.
9.5 ASSET DISPOSALS
(a) Subject to Clause 9.9 (PREPAYMENT ESCROW ACCOUNT), the
Obligor's Agent shall ensure that an amount equal to 100% of
the amount of the Net Disposal Proceeds of any disposals of
any asset by any member of the Group made in accordance with
the Disposal Plan or falling within paragraph (i) or (k)(iv)
of the definition of Permitted Disposals is applied within 5
Business Days of such member of the Group receiving such Net
Disposal Proceeds in repayment of the outstanding Loans in
accordance with Clause 9.8 (APPLICATION OF PREPAYMENTS), save
that if such Net Disposal Proceeds when added to the aggregate
amount of the Term Disposal Facility which has been repaid at
that time and the Relevant Debt Relief Amount at such time
exceed EUR255,000,000 (or its equivalent) (the amount of such
excess being the "EXCESS AMOUNT") then in respect of such
Excess Amount only the Obligor's Agent is only obliged to
procure that an amount equal to 75% of such Excess Amount is
so applied
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unless if as a result there would still be Term Disposal
Facility Loans outstanding, in which case it is obliged to
procure that a higher percentage of such Excess Amount is
so applied so as to ensure that the Term Disposal Facility
is repaid in full.
(b) Subject to Clause 9.9 (PREPAYMENT ESCROW ACCOUNT), the
Obligor's Agent shall ensure that an amount equal to 100% of
the amount of the Net Disposal Proceeds of any disposal of any
asset by any member of the Group, where such a disposal falls
within paragraph (n) of the definition of Permitted Disposals
or is a disposal pursuant to section 3.3 (EXEMPTION OF CERTAIN
TRANSACTIONS) of the BCA which does not fall to be applied
under paragraph (a) of this Clause 9.5, is applied promptly
upon such member of the Group receiving such amount in
repayment of the outstanding Loans in accordance with Clause
9.8 (APPLICATION OF PREPAYMENTS) save that if such Net
Disposal Proceeds exceed the aggregate amount of the Term
Disposal Facility Loans outstanding at that time (the amount
of such excess being the "EXCESS AMOUNT") then in respect of
such Excess Amount only the Obligor's Agent is only obliged to
procure that an amount equal to 75% of such Excess Amount is
so applied. The Obligor's Agent shall not be obliged to apply
such amounts in such repayment if the relevant member of the
Group can show to the satisfaction of the Agent (acting
reasonably) that the Net Disposal Proceeds, when aggregated
with the Net Disposal Proceeds received by members of the
Group in respect of disposals falling within paragraph (n) of
the definition of Permitted Disposals made in the same
calendar year, does not exceed EUR10,000,000 or its
equivalent.
(c) In the case of sub-clause (ii) of paragraph (e) of the
definition of Permitted Disposals in Clause 1.1 (DEFINITIONS),
the Obligor's Agent shall ensure that an amount equal to the
Net Disposal Proceeds referred to therein is, within 5
Business Days of the relevant member of the Group receiving
such Net Disposal Proceeds, deposited in a Prepayment Escrow
Account and the relevant member of the Group or the Obligor's
Agent shall be entitled, during the 180 or, as appropriate,
360 day period, to withdraw (or, as the case may be, require
the Obligor in whose name such Prepayment Escrow Account is
held to withdraw) sums from such account only to the extent
that it certifies to the Agent (providing any supporting
evidence reasonably required by the Agent) that such sums will
be reinvested or applied in accordance with the provisions of
sub-clause (A) or (B) of paragraph (e)(ii) of the definition
of Permitted Disposals in Clause 1.1 (DEFINITIONS).
(d) Any amounts not reinvested as specified in sub-clause (A) or
(B) of paragraph (e)(ii) of the definition of Permitted
Disposals in Clause 1.1 (DEFINITIONS) during the 180 or, as
appropriate, 360 day period specified therein shall (subject
to the provisions of Clause 9.9 (PREPAYMENT ESCROW ACCOUNTS))
thereafter be promptly applied in repayment of the outstanding
Loans in accordance with Clause 9.8 (APPLICATION OF
PREPAYMENTS).
9.6 INSURANCE PROCEEDS
(a) Subject to Clause 9.9 (PREPAYMENT ESCROW ACCOUNTS), the
Obligor's Agent shall ensure that an amount equal to the
Insurance Proceeds received by any member of the Group above
an aggregate minimum threshold of Insurance Proceeds of
EUR5,000,000 (the "MINIMUM INSURANCE PROCEEDS THRESHOLD") is,
within 5
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Business Days of such member receiving such Insurance
Proceeds, applied in repayment of the outstanding Loans in
accordance with Clause 9.8 (APPLICATION OF PREPAYMENTS) unless
the Obligor's Agent notifies the Agent within 30 days of
receipt by the relevant member of the Group of such proceeds
that either:
(i) the Insurance Proceeds received above the Minimum
Insurance Proceeds Threshold will be applied towards
the replacement, reinstatement and/or repair of the
assets in respect of which the relevant insurance
claim was made (or to refinance or reimburse any
expenditure incurred in the replacement,
reinstatement and/or repair of such assets) within a
period of 180 days from the date of receipt of such
Insurance Proceeds by the relevant member of the
Group; or
(ii) binding commitments will be made by the relevant
member of the Group within such 180 day period to so
apply the Insurance Proceeds received above the
Minimum Insurance Proceeds Threshold and such
proceeds are so applied pursuant to such commitments
within a period of 360 days or, if the proceeds to be
so applied exceed EUR20,000,000 (or its equivalent in
other currencies), 720 days from the date of receipt
of such proceeds by such member of the Group.
(b) If the Insurance Proceeds are to be applied in such
replacement, reinstatement, repair or to refinance such
expenditure as contemplated in paragraph (a) above, then the
Obligor's Agent shall ensure that an amount equal to such
Insurance Proceeds is, promptly upon such member receiving
such Insurance Proceeds, deposited in a Prepayment Escrow
Account. The relevant member of the Group who received the
Insurance Proceeds (or the Obligor's Agent) shall be entitled,
during the period of 180 days or, as appropriate, 360 days or,
as appropriate, 720 days, from such receipt of the Insurance
Proceeds, to withdraw sums from such Prepayment Escrow Account
only to the extent that it certifies to the Agent (providing
any supporting evidence reasonably requested by the Agent)
that such sums will be applied towards the replacement,
reinstatement and/or repair of the assets in respect of which
the relevant insurance claim was made (or to refinance or
reimburse any expenditure incurred in the replacement,
reinstatement and/or repair of such assets). Any sums not so
withdrawn during such 180 or, as appropriate, 360 or, as
appropriate, 720 day, period shall (subject to the provisions
of Clause 9.9 (PREPAYMENT ESCROW ACCOUNTS)) thereafter be
promptly paid to the Agent and applied in repayment of the
outstanding Loans in accordance with Clause 9.8 (APPLICATION
OF PREPAYMENTS).
9.7 ACQUISITION RECOVERY PROCEEDS
(a) Subject to Clause 9.9 (PREPAYMENT ESCROW ACCOUNT), the
Obligor's Agent shall ensure that an amount equal to the
amount of Acquisition Recovery Proceeds received by any member
of the Group (or any shareholder of the Company) above an
aggregate minimum threshold of Acquisition Recovery Proceeds
of EUR5,000,000 (the "MINIMUM ACQUISITION RECOVERY
THRESHOLD"), are within 5 Business Days of the relevant member
of the Group (or such other person) receiving such Acquisition
Recovery Proceeds applied in repayment of the outstanding
Loans in accordance with Clause 9.8 (APPLICATION OF
PREPAYMENTS) unless the Obligor's Agent notifies the Agent
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within 30 days of receipt by the relevant member of the Group
(or such other relevant person) of such proceeds that either:
(i) the Acquisition Recovery Proceeds received above the
Minimum Acquisition Recovery Threshold will be
applied towards an Acquisition Remedy within a period
of 180 days from the date of receipt of such
Acquisition Recovery Proceeds by the relevant member
of the Group; or
(ii) binding commitments will be made by the relevant
member of the Group within such 180 day period to
apply the Acquisition Recovery Proceeds received
above the Minimum Acquisition Recovery Threshold
towards an Acquisition Remedy set out in paragraph
(c) of the definition of Acquisition Remedy in Clause
1.1 (DEFINITIONS) and such proceeds are so applied
within 360 days from the date of receipt of such
proceeds by such member of the Group or relevant
person.
(b) If the Acquisition Recovery Proceeds are to be applied towards
an Acquisition Remedy, the Obligor's Agent shall ensure that
an amount equal to any Acquisition Recovery Proceeds to be
applied in accordance with paragraph (a) above is, promptly
upon the relevant member of the Group (or any other person
entitled to receive the same) receiving such Acquisition
Recovery Proceeds, deposited in a Prepayment Escrow Account.
The relevant member of the Group who received the Acquisition
Recovery Proceeds (or the Obligor's Agent) shall be entitled,
during the period of 180 days or, as appropriate, 360 days
from such receipt of such Acquisition Recovery Proceeds, to
withdraw sums from the Prepayment Escrow Account only to the
extent that it certifies to the Agent (providing any
supporting evidence reasonably requested by the Agent) that
such sums will be applied towards a relevant Acquisition
Remedy. Any sums not so withdrawn during such 180 day period
shall (subject to the provisions of Clause 9.9 (PREPAYMENT OF
ESCROW ACCOUNT)) thereafter be promptly paid to the Agent and
applied in repayment of the outstanding Loans in accordance
with Clause 9.8 (APPLICATION OF PREPAYMENTS).
9.8 APPLICATION OF PREPAYMENTS
(a) Any amounts paid to the Agent in accordance with Clause 9.4
(EXCESS CASH FLOW) to 9.7 (ACQUISITION RECOVERY PROCEEDS)
(inclusive) (other than paragraph (a) of Clause 9.5 (ASSET
DISPOSALS)) to be applied in prepayment of the Loans shall be
applied as follows:
(i) first, in repayment of the outstanding Term Facility
Loans in the Prepayment Order (and a corresponding
cancellation of the Term Facilities), such repayment
and cancellation being on a pro rata basis between
the Term Facilities (subject to paragraph (d) below);
and
(ii) secondly, if any excess remains thereafter, in
payment of such excess to the relevant member of the
Group and in cancellation of the remaining Available
Facility in respect of each Revolving Facility by an
equal amount (reducing the Commitments of the Lenders
rateably under each such Revolving Facility).
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(b) Any amounts paid to the Agent in accordance with paragraph (a)
of Clause 9.5 (ASSET DISPOSALS) to be applied in prepayment of
the Loans shall be applied as follows:
(i) first, in repayment of the outstanding Term Disposal
Facility Loans on a pro rata basis (and a
corresponding cancellation of the Term Disposal
Facility);
(ii) secondly, after repayment in full of the Term
Disposal Facility Loans, in repayment of the
outstanding Term Refinancing Facility Loans in
satisfaction (subject to paragraph (d) below) of the
obligations under Clauses 7.2 (REPAYMENT OF TERM A
FACILITY LOANS), 7.3 (REPAYMENT OF TERM B DOLLAR
FACILITY LOANS), 7.4 (REPAYMENT OF TERM B EURO
FACILITY LOANS), 7.5 (REPAYMENT OF TERM C EURO
FACILITY LOANS) and 7.6 (REPAYMENT OF TERM C DOLLAR
FACILITY LOANS) pro rata across the Outstandings
under each of those Term Refinancing Facilities (and
a corresponding cancellation of the Term Refinancing
Facilities); and
(iii) thirdly, if any excess remains thereafter, in payment
of such excess to the relevant member of the Group
and in cancellation of the remaining Available
Facility in respect of each Revolving Facility by an
equal amount (reducing the Commitments of the Lenders
rateably under each such Revolving Facility).
(c) Any amount of the Loans repaid in accordance with this Clause
9.8 may not be reborrowed and any cancellation of the
Available Facility in accordance with this Clause 9.8 shall
reduce the Commitment of each Lender rateably and the amount
so cancelled may not be reborrowed.
(d) Any Lender which has provided a Term B Euro Facility Loan
and/or a Term B Dollar Facility Loan and/or a Term C Euro
Facility Loan and/or a Term C Dollar Facility Loan, shall have
the right to elect that any such Loan shall not be mandatorily
repaid in accordance with this Clause 9.8 PROVIDED THAT the
amount which would have been applied towards such mandatory
prepayment can be applied towards the mandatory prepayment of
Term Disposal Facility Loans and/or Term A Facility Loans
which remain outstanding. Any Lenders wishing to make such an
election shall notify the Agent accordingly. The sums which
would have been applied towards the repayment of such Loans
shall be applied towards the repayment of the remaining Term
Facility Loans and (if appropriate) in payment to the relevant
member of the Group (and corresponding cancellation of the
remaining Available Facility in respect of each Revolving
Facility), in each case in accordance with paragraphs (a) or
(b) above (as applicable).
9.9 PREPAYMENT ESCROW ACCOUNTS
(a) If Clause 9.4 (EXCESS CASH FLOW) to Clause 9.7 (ACQUISITION
RECOVERY PROCEEDS) inclusive would require the Obligor's Agent
to procure the prepayment of any Loan otherwise than at the
end of an Interest Period relating to that Loan, the Obligor's
Agent can elect (by written notice to the Agent to be received
not later than 10 a.m. three Business Days prior to the date
on which the prepayment obligation would, but for this Clause
9.9, arise) to credit the amount to be prepaid to an
identified Prepayment Escrow Account on the date on which the
prepayment obligation would, but for this Clause 9.9, arise
and to prepay the relevant Loan at the first occurring end
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of an Interest Period relative to the Loan to be repaid.
Following any such election and provided the required payment
is made to such Prepayment Escrow Account the obligation to
prepay the relevant Loan will not arise until the first
occurring end of an Interest Period relative to such Loan to
be repaid.
(b) The Obligor's Agent and each Obligor hereby irrevocably
authorises the Agent to withdraw monies from any Prepayment
Escrow Account and apply such monies against prepayments which
are due to be made hereunder.
(c) The Parties agree that interest which has accrued on any
Prepayment Escrow Account may be withdrawn by the Obligor in
whose name that Prepayment Escrow Account is held in
accordance with the mandate relating to such account PROVIDED
THAT no such withdrawal may be made while a Default is
continuing.
(d) If an amount is paid into a Prepayment Escrow Account pursuant
to the provisions of paragraph (e) (ii) of the definition of
Permitted Disposals in Clause 1.1 (DEFINITIONS) then the
Obligor's Agent shall be entitled, during the 180 or, as
appropriate, 360 day period referred to in that paragraph (e)
(ii) in relation to such amount to withdraw (or, as the case
may be, require the Obligor in whose name such Prepayment
Escrow Account is held to withdraw) sums from such account
only to the extent that it certifies to the Agent (providing
any supporting evidence reasonably required by the Agent) that
such sums will be used to acquire Comparable Assets as defined
in paragraph (e) of the definition of Permitted Disposals. Any
amounts not so applied as specified above during such 180 or,
as appropriate, 360 day period shall be promptly applied in
repayment of the outstanding Loans in accordance with this
Clause 9.9.
9.10 VOLUNTARY CANCELLATION
(a) The Obligor's Agent may, if it gives the Agent not less than
ten 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 EUR5,000,000) of an Available
Facility. The Obligor's Agent may only cancel any amount of
the Available Facility relating to Revolving Facility II if
either:
(i) the Total Non-Indemnified Unconsolidated Debt has been
or will be permanently reduced by at least the same
amount prior to any such cancellation and for the
avoidance of any doubt the amount of any permanent
reduction of Total Non-Indemnified Unconsolidated Debt
may only count once for the purpose of this Clause 9.10;
or
(ii) the Obligor's Agent certifies to the Agent (providing
any supporting evidence thereof reasonably requested by
the Agent) that after the proposed cancellation the
Available Facility relating to Revolving Facility II
will be equal to or greater than Total Non-Indemnified
Unconsolidated Debt.
Any cancellation under this Clause 9.10 shall reduce the
Commitments of the Lenders rateably under that Facility.
(b) The Obligor's Agent may, by giving the Agent not less than ten
Business Days' prior notice (or such shorter period as the
Majority Lenders may agree) of its intention to
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do so, procure that the relevant Fronting Bank's liability
under a Letter of Credit or a Bank Guarantee is reduced to
zero (whereupon the Obligor's Agent and the relevant Borrower
shall do so).
9.11 VOLUNTARY PREPAYMENT OF TERM FACILITY LOANS
(a) A Borrower to which a Term Facility Loan has been made may, if
it gives the Agent not less than five Business Days' (or such
shorter period as the Majority Lenders may agree) prior
notice, prepay the whole or any part of any Term Facility Loan
(but, if in part, being an amount that reduces the Base
Currency Amount of the relevant Term Facility Loan by a
minimum amount of EUR5,000,000 (in the case of a Term Facility
Loan which is not a Dollar Facility Loan) or by a minimum
amount of $5,000,000 (in the case of a Dollar Facility Loan)
or in any other amount to comply with paragraph (d) of this
Clause 9.11).
(b) A Term Facility Loan may only be prepaid after the last day of
the relevant Availability Period (or, if earlier, the day on
which the applicable Available Facility is zero) unless
paragraph (d) of this Clause 9.11 applies.
(c) Subject to paragraph (d) of this Clause 9.11, any prepayment
under this Clause 9.11 shall:
(i) in respect of Term Disposal Facility Loans, satisfy the
obligations under Clause 7.1 (REPAYMENT OF TERM DISPOSAL
FACILITY LOANS) on a pro rata basis; and
(ii) in respect of Term A Facility Loans, Term B Euro
Facility Loans, Term B Dollar Facility Loans, Term C
Euro Facility Loans and Term C Dollar Facility Loans
satisfy the obligations under Clauses 7.2 (REPAYMENT OF
TERM A FACILITY LOANS), Clause 7.3 (REPAYMENT OF TERM B
DOLLAR FACILITY LOANS), Clause 7.4 (REPAYMENT OF TERM B
EURO FACILITY LOANS), Clause 7.5 (REPAYMENT OF TERM C
EURO FACILITY LOANS) or, as the case may be, Clause 7.6
(REPAYMENT OF TERM C DOLLAR FACILITY LOANS) in the
Prepayment Order.
(d) Any prepayment of the Facilities from EUR 115,000,000 of the
Additional Amount (as defined in the definition of High Yield
Notes in Clause 1.1 (DEFINITIONS)) shall be made under this
Clause 9.11 and shall be applied in prepayment of the
Outstandings as follows:
(iii) EUR 60,000,000 shall be used in prepayment of the Term A
Facility and immediately after such prepayment there shall be
deemed to be an immediate re-borrowing of half of such amount
so prepaid resulting in a Term A Facility Loan (the "DEEMED
LOAN") deemed to be borrowed by ▇▇▇▇▇▇ Finance S.A. in euro
of EUR 30,000,000. The Deemed Loan shall have a first
Interest Period ending on 5 June 2001 and EURIBOR in relation
to such first Interest Period shall be deemed to be the same
as that which applied to the Term A Facility Loans so
prepaid. The Deemed Loan shall be applied by the Agent
immediately in partial prepayment of the Term Disposal
Facility Loans borrowed by ▇▇▇▇▇▇ Finance S.A. and to the
extent such Term Disposal Facility Loans are in dollars those
Term Disposal Facility Loans shall be reduced by such
prepayment in euro at the Agent's Spot Rate of Exchange for
the purchase of dollars with euro on the date of such
prepayment, with the net result being that the Term A
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Facility is permanently prepaid by EUR30,000,000 on the date
of the High Yield Proceeds Loan and the Term Disposal
Facility is permanently prepaid by the equivalent in dollars
of EUR 30,000,000 on the same date and the Deemed Loan
remains outstanding on such date; and
(iv) EUR 55,000,000 shall be used in prepayment of the Term C
Euro Facility."
9.12 VOLUNTARY PREPAYMENT OF REVOLVING FACILITY LOANS
The Borrower to which a Revolving Facility Loan has been made may, if it
gives the Agent not less than five Business Days' (or such shorter
period as the Majority Lenders may agree) prior notice, prepay the whole
or any part of a Revolving Facility Loan (but if in part, being an
amount that reduces the Base Currency Amount of the Revolving Facility
Loan by a minimum amount of EUR5,000,000).
9.13 PREPAYMENT PREMIUM
(a) If, in each case on or before the Prepayment Premium Date:
(i) the whole or any part of any outstanding Prepayment
Premium Loan becomes immediately due and payable
pursuant to Clause 9.2 (CHANGE OF CONTROL) or Clause
9.3 (FLOTATION OR SALE); and/or
(ii) a Borrower voluntarily gives the Agent notice,
pursuant to Clause 9.11 (VOLUNTARY PREPAYMENT OF TERM
FACILITY LOANS), that it wishes to prepay the whole
or any part of a Prepayment Premium Loan,
the provisions of paragraph (b) below will apply PROVIDED THAT
they will not apply to any voluntary prepayment of a
Prepayment Premium Loan made in accordance with paragraph (d)
of Clause 9.11 (VOLUNTARY PREPAYMENT OF TERM FACILITY LOANS)
to the extent such prepayments are made prior to 90 days after
the date hereof.
(b) If all or any part of a Prepayment Premium Loan becomes due
and payable in the circumstances set out in paragraph (a)
above:
(i) an amount equal to the Prepayment Premium applicable
to the amount of such Prepayment Premium Loan
(excluding any amount which the Obligor's Agent
certifies is prepaid as a result of the provisions of
paragraph (a)(ii) above out of the amount of Net
Disposal Proceeds or Insurance Proceeds or
Acquisition Recovery Proceeds which were not required
to be used in mandatory prepayment under Clauses 9.5
(ASSET DISPOSALS), 9.6 (INSURANCE PROCEEDS) or 9.7
(ACQUISITION RECOVERY PROCEEDS) respectively) which
becomes due and payable (the "APPLICABLE PREPAYMENT
PREMIUM") will become immediately due and payable by
the Borrower owing such a Prepayment Premium Loan;
(ii) each Applicable Prepayment Premium shall be paid to
the Agent at the same time as the Prepayment Premium
Loan (or any part thereof) to which it relates is
repaid to the Agent; and
(iii) the Agent shall distribute each Applicable Prepayment
Premium between the Lenders rateably according to
their participations in each Loan to which that
Applicable Prepayment Premium relates.
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9.14 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER OR
FRONTING BANK
(a) If:
(i) any sum payable to any Lender or Fronting Bank by an
Obligor is required to be increased under paragraph
(c) of Clause 14.2 (TAX GROSS-UP); or
(ii) any Lender or Fronting Bank claims indemnification
from the Company under Clause 14.3 (TAX INDEMNITY) or
Clause 15.1 (INCREASED COSTS),
the Obligor's Agent may, whilst the circumstance giving rise
to the requirement or indemnification continues, give the
Agent notice:
(A) (if such circumstance relates to a Lender)
of cancellation of the Commitment 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 a Fronting
Bank) of cancellation of or of the Obligor's
Agent's intention to procure that Cash
Collateral is provided in respect of that
Fronting Bank's Letters of Credit and Bank
Guarantees.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to
zero.
(c) On the last day of each Interest Period or, as the case may
be, Term which ends after the Obligor's Agent has given notice
under paragraph (a) above (or, if earlier, the date specified
by the Obligor's Agent in that notice), the Borrowers shall:
(A) (if the circumstance relates to a Lender)
repay that Lender's participation in the
Loans;
(B) (if the circumstance relates to a Lender)
procure either that such Lender's L/C
Proportion of each relevant Letter of Credit
be reduced to zero (by reduction of the
amount of that Letter of Credit in an amount
equal to that Lender's L/C Proportion) or
that Cash Collateral be provided to the
Agent in an amount equal to such Lender's
L/C Proportion of that Letter of Credit);
(C) (if the circumstance relates to a Lender)
procure either that such Lender's Guarantee
Proportion of each relevant Bank Guarantee
be reduced to zero (by reduction of the
amount of that Bank Guarantee in an amount
equal to that Lender's Guarantee Proportion)
or that Cash Collateral be provided to the
Agent in an amount equal to such Lender's
Guarantee Proportion of that Bank
Guarantee); and
(D) (if the circumstance relates to a Fronting
Bank) procure that the relevant Fronting
Bank's liability under any Letters of Credit
and Bank Guarantees issued by it shall
either be reduced to zero or otherwise
secured by the relevant Borrower providing
Cash Collateral in an amount equal to that
Fronting Bank's maximum actual and
contingent liabilities under those Letters
of Credit and Bank Guarantees.
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9.15 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 save as provided
in Clause 9.13 (PREPAYMENT PREMIUM).
(c) No Borrower may reborrow any part of a Term Facility which is
prepaid.
(d) Unless a contrary indication appears in this Agreement, any
part of a Revolving Facility which is prepaid may be
reborrowed in accordance with the terms of this Agreement.
(e) The Borrowers shall not repay or prepay all or any part of the
Loans, reduce the liabilities of the Lenders or Fronting Banks
or provide Cash Collateral in respect of Letters of Credit or
Bank Guarantees or cancel all or any part of the Commitments
except at the times and in the manner expressly provided for
in this Agreement.
(f) No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated.
(g) If the Agent receives a notice under this Clause 9 it shall
promptly forward a copy of that notice to either the Obligor's
Agent or the affected Lender, as appropriate.
9.16 AUTOMATIC CANCELLATION
(a) If the Closing Date does not occur by 30 June 2001 then the
Facilities shall be automatically cancelled on that date.
(b) If the Fee Letters relating to the fees referred to in Clauses
13.5 (ARRANGEMENT FEE) and 13.6 (AGENCY FEE) and 13.7
(SECURITY TRUSTEE FEE) are not all executed, dated and
effective within two Business Days of the date of this
Agreement then the Facilities shall be automatically cancelled
at 11.59pm on second Business Day to occur after the date of
this Agreement.
(c) If the certificate referred to in Clause 26.11 (MGG ACCESSION)
is not delivered to the Agent by 11.59 p.m. on 2 May 2001,
then the Facilities shall be automatically cancelled at 11.59
p.m. on 2 May 2001.
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SECTION 5
COSTS OF UTILISATION
10. INTEREST
10.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR or, in relation to any Loan in euro, EURIBOR; and
(c) Mandatory Cost, if any.
10.2 MARGIN RATCHETS
(a) The Margin shall, in respect of all Term A Facility Loans and
all Revolving Facility Loans:
(i) from the date hereof until the later of (a) the date on
which both the Term Disposal Facility has been repaid in
full and the conditions specified in Clause 23.38 (TOTAL
DEBT RELIEF AMOUNT) have been met and (b) the date
falling 12 months after the date hereof, be the Initial
Margin for the relevant Facility; and
(ii) at any other time, subject to Clause 10.4 (DEFAULT
MARGIN) and in accordance with the provisions of Clause
10.3 (MARGIN CHANGES), be the Initial Margin for the
relevant Facility reduced by the amount determined by
the Leverage Ratio for the then most recently ended
Relevant Period in respect of which financial statements
have been delivered to the Agent pursuant to paragraph
(a), (b) or (d) of Clause 21.1 (FINANCIAL STATEMENTS) in
accordance with the table set out below PROVIDED THAT
if, but for this proviso, the applicable Margin would
reduce by more than 0.25 at any one time then it shall
only reduce by 0.25.
---------------------------------------------------------- ---------------------------------------
LEVERAGE RATIO AMOUNT OF REDUCTION FROM
INITIAL MARGIN
---------------------------------------------------------- ---------------------------------------
Equal to or greater than 3.5:1 0
---------------------------------------------------------- ---------------------------------------
Less than 3.5:1 but equal to or greater than 3.0:1 0.25
---------------------------------------------------------- ---------------------------------------
Less than 3.0:1 but equal to or greater than 2.5:1 0.50
---------------------------------------------------------- ---------------------------------------
Less than 2.5:1 but equal to or greater than 2.0:1 0.75
---------------------------------------------------------- ---------------------------------------
Less than 2.0:1 1.00
---------------------------------------------------------- ---------------------------------------
(b) The Margin shall, in respect of all Term B Euro Facility Loans
and all Term B Dollar Facility Loans:
(i) from the date hereof until the later of the (a) date
on which both the Term Disposal Facility has been
repaid in full and the conditions specified in Clause
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23.38 (TOTAL DEBT RELIEF AMOUNT) have been met and
(b) the date falling 12 months after the date hereof,
be the Initial Margin for the Term B Facilities; and
(ii) subject to Clause 10.4 (DEFAULT MARGIN) and in
accordance with the provisions of Clause 10.3 (MARGIN
CHANGES), at any time when the Leverage Ratio for the
then most recently ended Relevant Period in respect
of which financial statements have been delivered to
the Agent pursuant to paragraph (a), (b) or (d) of
Clause 21.1 (FINANCIAL STATEMENTS) is less than 3:1,
be the Initial Margin for that Facility less 0.25.
10.3 MARGIN CHANGES
Any reduction or increase to the Margin provided for by Clause 10.2
(MARGIN RATCHETS) shall take effect in relation to all future Loans with
effect from the date the Agent receives the Compliance Certificate
(together with the accompanying consolidated financial statements of
Newco 2 and, if applicable, the relevant Auditor's Report) in accordance
with Clause 21.2 (COMPLIANCE CERTIFICATES) for its most recent Financial
Quarter. For these purposes, if there is to be a reduction or increase
in the Margin provided for by Clause 10.2 (MARGIN RATCHETS) and there
are any existing Term A Facility Loans or Term B Euro Facility Loans
outstanding at such time, then at the last day of each then current
Interest Period relating to each such Term A Facility Loan or Term B
Euro Facility Loan (as applicable) there shall be deemed to be a
repayment of such Term A Facility Loan or Term B Euro Facility Loan (as
applicable) and an immediate re-borrowing of a Term A Facility Loan or
Term B Euro Facility Loan (as applicable) in the same amount and same
currency as the Term A Facility Loan or Term B Euro Facility Loan (as
applicable) deemed repaid and any change in the Margin applicable to
each such new Term A Facility Loan or Term B Euro Facility Loan (as
applicable) shall take effect in relation to such new Term A Facility
Loan or Term B Euro Facility Loan (as applicable).
10.4 DEFAULT MARGIN
No reduction in the Margin provided for by Clause 10.2 (MARGIN RATCHETS)
will be implemented from the date (a "NO RATCHET DATE") determined by
the Agent as being the date on which an Event of Default has occurred or
come into existence until the date (a "RATCHET DATE") specified by the
Agent as being the date on which it has been demonstrated to its
satisfaction that such Event of Default is no longer continuing. The
Margin applicable to any Loan outstanding during the period from any No
Ratchet Date until the corresponding Ratchet Date shall be the Initial
Margin. The Agent shall promptly notify the Lenders and the Obligor's
Agent of any determination that an Event of Default has occurred or
exists or, as the case may be, that it has been demonstrated to its
reasonable satisfaction that such is no longer continuing.
10.5 PAYMENT OF INTEREST
The Borrower to which a Loan has been made shall pay accrued interest on
that Loan on the last day of each Interest Period (and, if the Interest
Period is longer than six Months, on the dates falling at six Monthly
intervals after the first day of the Interest Period).
10.6 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date
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of actual payment (both before and after judgment) at a rate
one per cent higher than the rate which would have been
payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the
overdue amount for successive Interest Periods, each of a
duration selected by the Agent (acting reasonably). Any
interest accruing under this Clause 10.6 shall be immediately
payable by the relevant Obligor on demand by the Agent.
(b) Default interest (if unpaid) arising on an overdue amount will
be compounded with the overdue amount at the end of each
Interest Period applicable to that overdue amount but will
remain immediately due and payable.
10.7 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the relevant Borrower of
the determination of a rate of interest under this Agreement.
11. INTEREST PERIODS AND TERMS
11.1 SELECTION OF INTEREST PERIODS AND TERMS
(a) A Borrower (or the Obligor's Agent on behalf of a Borrower)
may select:
(i) an Interest Period for a Loan in the Utilisation
Request for that Loan or (if the Loan has already
been borrowed) in a Selection Notice; or
(ii) a Term for a Letter of Credit or Bank Guarantee in
the Utilisation Request for that Letter of Credit or,
as the case may be, Bank Guarantee.
(b) Each Selection Notice for a Term Facility Loan is irrevocable
and must be delivered to the Agent by the Borrower (or the
Obligor's Agent on behalf of a Borrower) to which that Term
Facility Loan was made not later than the Specified Time.
(c) If a Borrower (or the Obligor's Agent) fails to deliver a
Selection Notice to the Agent in accordance with paragraph (b)
above, the relevant Interest Period will, subject to Clause
11.2 (CHANGES TO INTEREST PERIODS) and paragraph (j) of this
Clause 11.1, be one Month.
(d) Subject to this Clause 11, a Borrower (or the Obligor's Agent)
may select an Interest Period of one, two, three or six Months
or any other period agreed between the Obligor's Agent and the
Agent (acting on the instructions of all the Lenders). In
addition a Borrower (or the Obligor's Agent on its behalf) may
select (in relation to a Term Facility) an Interest Period of
less than one Month, if necessary to ensure that there are
Loans in respect of that Term Facility (with an aggregate Base
Currency Amount equal to or greater than the relevant
Repayment Instalment) which have an Interest Period ending on
a Term Disposal Facility Repayment Date, Term A Facility
Repayment Date, Term B Facility Repayment Date or, as the case
may be, Term C Facility Repayment Date for the relevant
Borrower(s) to make such Repayment Instalment due on that
date.
(e) A Borrower (or the Obligor's Agent on behalf of a Borrower)
may select a Term for a Letter of Credit or a Bank Guarantee
of a period of up to twelve months, ending on or before the
Termination Date for the relevant Revolving Facility.
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(f) An Interest Period for a Loan shall not extend beyond the
Termination Date applicable to its Facility. A Term for a
Letter of Credit or a Bank Guarantee shall not extend beyond
the Termination Date for the relevant Revolving Facility.
(g) Each Interest Period for a Term Facility Loan shall start on
the Utilisation Date or (if already made) on the last day of
its preceding Interest Period.
(h) A Revolving Facility Loan has one Interest Period only, which
shall start on the Utilisation Date. A Term for a Letter of
Credit or a Bank Guarantee shall start on the Utilisation
Date.
(i) Prior to the last Syndication Date and subject to paragraph
(j) below, Interest Periods shall be one month or such other
period as specified by the Agent (acting reasonably) and any
Interest Period which would otherwise end during the month
preceding or extend beyond a Syndication Date shall end on
that Syndication Date. Consequently (for the avoidance of
doubt) no Selection Notices are required to be delivered by
any Borrower prior to the last Syndication Date.
(j) The first Interest Period for each Loan made on the Closing
Date shall be three Business Days and the first Interest
Period for the Deemed Loan referred to in paragraph (d) of
Clause 9.11 (VOLUNTARY PREPAYMENT OF TERM FACILITY LOANS)
shall end on 5 June 2001.
11.2 CHANGES TO INTEREST PERIODS
(a) Prior to determining the interest rate for a Term Facility
Loan, the Agent may shorten an Interest Period for any Term
Facility Loan to ensure there are sufficient Loans for the
relevant Term Facility with Interest Periods ending on a Term
Disposal Facility Repayment Date, Term A Facility Repayment
Date, Term B Facility Repayment Date or, as the case may be,
Term C Facility Repayment Date for the relevant Borrower(s) to
make the Repayment Instalment due on that date.
(b) If the Agent makes any of the changes to an Interest Period
referred to in this Clause 11.2, it shall promptly notify the
Obligor's Agent 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 or, as the case may be, Term 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 unless such Interest
Period is for one day, in which case it shall be the immediately
succeeding Business Day).
11.4 CONSOLIDATION AND DIVISION OF TERM FACILITY LOANS
(a) Subject to paragraph (b) below, if two or more Interest
Periods:
(i) relate to Loans under the same Term Facility and in
the same currency; and
(ii) end on the same date; and
(iii) are made to the same Borrower
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those Term Facility Loans will, unless that Borrower (or the
Obligor's Agent on its behalf) specifies to the contrary in
the Selection Notice for the next Interest Period, be
consolidated into, and treated as, a single Loan under the
relevant Term Facility on the last day of the Interest Period.
(b) Subject to Clause 4.4 (MAXIMUM NUMBER OF LOANS, LETTERS OF
CREDIT OR BANK GUARANTEE) and Clause 5.3 (CURRENCY AND
AMOUNT), if a Borrower (or the Obligor's Agent on its behalf)
requests in a Selection Notice that a Term Facility Loan be
divided into two or more Loans under the relevant Term
Facility, that Term Facility Loan will, on the last day of its
Interest Period, be so divided with Base Currency Amounts
specified in that Selection Notice, being an aggregate Base
Currency Amount equal to the Base Currency Amount of the Term
Facility Loan immediately before its division.
(c) A Term Facility Loan shall be divided into a number of
separate Loans with the same initial Interest Periods as the
Term Facility Loan immediately prior to such division on the
Debtco Exit Date if the provisions of Clause 26.8 (TRANSFERS
ON DEBTCO EXIT DATE) so require.
12. CHANGES TO THE CALCULATION OF INTEREST
12.1 ABSENCE OF QUOTATIONS
Subject to Clause 12.2 (MARKET DISRUPTION), if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable LIBOR or EURIBOR shall be determined on
the basis of the quotations of the remaining Reference Banks.
12.2 MARKET DISRUPTION
(a) If a Market Disruption Event (as defined in paragraph (b)
below) occurs in relation to a Loan for any Interest Period,
then the rate of interest on each Lender's share of that Loan
for the Interest Period shall be the rate per annum which is
the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender (acting
in good faith) as soon as practicable and in any
event before interest is due to be paid in respect of
that Interest Period, to be that which expresses as a
percentage rate per annum the cost to that Lender of
funding its participation in that Loan from whatever
source it may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that
Lender's participation in the Loan.
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the
relevant Interest Period the Screen Rate is not
available and none or only one of the Reference Banks
supplies a rate to the Agent to determine LIBOR or,
if applicable, EURIBOR for the relevant currency and
Interest Period; or
(ii) before close of business in London on the Quotation
Day for the relevant Interest Period, the Agent
receives notifications from a Lender or Lenders
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(whose participations in a Loan exceed 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 LIBOR or, if applicable,
EURIBOR.
12.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the
Obligor's Agent so requires, the Agent and the Obligor's Agent
shall enter into negotiations (for a period of not more than
thirty days) with a view to agreeing a substitute basis for
determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the
Obligor's Agent, be binding on all Parties but when the Market
Disruption Event ceases to apply any such alternative basis
shall cease to apply and the other provisions of this
Agreement relating to determining the rate of interest shall
apply once more.
12.4 BREAK COSTS
(a) Each Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by that Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Break Costs for any Interest Period in which
they accrue.
13. FEES
13.1 COMMITMENT FEE
(a) The Obligor's Agent shall, in respect of each Facility and for
the period from the date of this Agreement until (but
excluding) the earlier to occur of 20 April 2001 and the
Closing Date, pay to the Agent (for the account of each
Lender) a commitment fee in the relevant Base Currency
computed at a rate of 0.375% per annum on each Lender's
Available Commitment under each Facility.
(b) The accrued commitment fees under paragraph (a) above will
only become payable on the earlier to occur of 20 April 2001
and the Closing Date (the "FIRST COMMITMENT FEE DATE"). If the
Obligor's Agent cancels the Facilities in full prior to the
First Commitment Fee Date no commitment fees will be payable
under this Agreement.
(c) The Obligor's Agent shall, in respect of each Facility, from
the earlier to occur of the Closing Date and 20 April 2001
(the "RELEVANT DATE") pay to the Agent (for the account of
each Lender) a commitment fee in the relevant Base Currency
computed at a rate of 0.75% per annum on each Lender's
Available Commitment under each Facility for the Availability
Period applicable to that Facility (commencing from the
Relevant Date).
(d) The accrued commitment fees under paragraph (c) above are
payable on the last day of each successive period of three
Months which ends during the relevant Availability
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Period (commencing from the earlier to occur of the Closing
Date and 20 April 2001), on the last day of the relevant
Availability Period and on the date the relevant Lender's
Commitment is cancelled.
13.2 LETTER OF CREDIT COMMISSION
(a) Each Borrower shall, in respect of each Letter of Credit
issued at its request, pay to the Agent (for the account of
each Lender) (for distribution in proportion to each Lender's
L/C Proportion of that Letter of Credit) a letter of credit
commission in the relevant Base Currency at the L/C Commission
Rate on the maximum actual and contingent liabilities of the
Fronting Bank under the relevant Letter of Credit.
(b) The accrued letter of credit commission shall be paid on the
last day of each successive period of three Months which ends
during the Term of the relevant Letter of Credit and on the
relevant Expiry Date.
13.3 BANK GUARANTEE COMMISSION
(a) Each Borrower shall, in respect of each Bank Guarantee issued
at its request, pay to the Agent (for the account of each
Lender) (for distribution in proportion to each Lender's
Guarantee Proportion of that Bank Guarantee) a bank guarantee
commission in the relevant Base Currency at the Guarantee
Commission Rate on the maximum actual and contingent
liabilities of the Fronting Bank under the relevant Bank
Guarantee.
(b) The accrued bank guarantee commission shall be paid on the
last day of each successive period of three Months which ends
during the Term of the relevant Bank Guarantee and on the
relevant Expiry Date.
13.4 FRONTING BANK FEE
Each Borrower shall, in respect of each Letter of Credit and Bank
Guarantee issued at its request, pay to the relevant Fronting Bank a fee
in the relevant Base Currency in the amounts and at the times agreed
between such Fronting Bank and the Obligor's Agent in a Fee Letter.
13.5 ARRANGEMENT FEE
The Obligor's Agent shall procure that MGG pays to the relevant
Arrangers an arrangement fee in the amount and at the times agreed in a
Fee Letter.
13.6 AGENCY FEE
The Obligor's Agent shall procure that MGG pays to the Agent (for its
own account) an agency fee in the amount and at the times agreed in a
Fee Letter.
13.7 SECURITY TRUSTEE FEE
The Obligor's Agent shall procure that MGG pays to the Security Trustee
(for its own account) a security trustee fee in the amount and at the
times agreed in a Fee Letter.
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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 which is or will be,
for or on account of Tax, subject to any liability or required
to make any payment in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.
"QUALIFYING LENDER" means:
(i) in respect of a payment made by an Obligor
incorporated in the United Kingdom, a Lender which
is:
(A) within the charge to United Kingdom
corporation tax as respects that payment and
that is a Lender in respect of an advance
made by a person that was a bank (as defined
for the purpose of section 349 of the Taxes
Act in section 840A of the Taxes Act) at the
time that advance was made; or
(B) a Treaty Lender with respect to the United
Kingdom;
(ii) in respect of payment made by an Obligor which is
incorporated in Germany, means any Lender;
(iii) in respect of a payment made by an Obligor which is
incorporated in the United States of America or any
state thereof, a Lender which is:
(A) created or organised under the laws of the
United States of America or of any state
thereof; or
(B) a Treaty Lender with respect to the United
States of America; or
(C) entitled to receive payments under this
Agreement without deduction or withholding
of any United States federal income Taxes as
a result of such payments being effectively
connected with the conduct by such Lender of
a trade or business within the United
States, provided such Lender timely has
delivered to the Agent for transmission to
the Obligor making such payment two original
copies of either (1) Internal Revenue
Service Form W-8ECI (or any successor form)
certifying that the payments made pursuant
to the Finance Documents are effectively
connected with the conduct by that Lender of
a trade or business within the United States
or (2) Internal Revenue Service Form W-8BEN
(or any successor form) claiming exemption
from withholding in respect of payments made
pursuant to the Finance Documents under the
portfolio interest exemption or (3) such
other applicable form prescribed by the IRS
certifying as to such Lender's entitlement
to exemption from United States withholding
tax
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with respect to all payments to be made
to such Lender under the Finance Documents;
and
(iv) in respect of a payment by an Obligor not
incorporated in the United Kingdom, the United States
of America or Germany, any Lender.
"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).
"TREATY LENDER" means, in respect of a jurisdiction, a Lender
entitled under the provisions of a double taxation treaty to
receive payments of interest from a person resident in such
jurisdiction without a Tax Deduction (subject to the
completion of any necessary procedural formalities).
(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) The Obligor's Agent or a Lender shall promptly upon becoming
aware that an Obligor must make a Tax Deduction (or that there
is any change in the rate or the basis of a Tax Deduction)
notify the Agent accordingly. If the Agent receives such
notification from a Lender it shall notify the Obligor's Agent
and that Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor
in one of the circumstances set out in paragraph (d) below,
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) The circumstances referred to in paragraph (c) above are where
a person entitled to the payment:
(i) is the Agent or an Arranger (on its own behalf); or
(ii) is a Qualifying Lender as respects such payment, unless
that Qualifying Lender is a Treaty Lender and the
Obligor making the payment is able to demonstrate the
Tax Deduction is required to be made as a result of the
failure of that Qualifying Lender to comply with
paragraph (g) below; or
(iii) is not or has ceased to be a Qualifying Lender to the
extent that this altered status results from any change
after the date of this Agreement in (or in the
interpretation, administration, or application of) any
law or double taxation
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agreement or any published practice or published
concession of any relevant taxing authority.
(e) If an Obligor is required to make a Tax Deduction, that
Obligor shall make that Tax Deduction and any payment required
in connection with that Tax Deduction within the time allowed
and in the minimum amount required by law.
(f) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Obligor making that Tax Deduction shall deliver to the Agent
for the Finance Party entitled to the payment 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 Treaty Lender and each Obligor which makes a payment to
which that Treaty Lender is entitled shall co-operate in
completing any procedural formalities necessary for that
Obligor to obtain authorisation to make that payment without a
Tax Deduction.
14.3 TAX INDEMNITY
(a) The Obligor's Agent shall (within ten Business Days of demand
by the Agent) pay to a Protected Party an amount equal to the
loss, liability or cost which that Protected Party determines
will be or has been (directly or indirectly) suffered by that
Protected Party for or on account of Tax in relation to any
sum received or receivable (or any sum deemed for the purposes
of Tax to be received or receivable) under a Finance Document.
(b) Paragraph (a) above shall not apply with respect to any Tax
assessed on a Protected Party:
(i) under the law of the jurisdiction in which that
Protected Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that
Protected Party is treated as resident for tax
purposes; or
(ii) under the law of the jurisdiction in which that
Protected Party's Facility Office is located in
respect of amounts received or receivable in that
jurisdiction,
if that Tax is imposed on or calculated by reference to the
net income received or receivable (but not any sum deemed to
be received or receivable) by that Protected Party.
(c) A Protected Party making, or intending to make a claim
pursuant to paragraph (a) above shall promptly notify the
Agent of the event which will give, or has given, rise to the
claim, following which the Agent shall notify the Obligor's
Agent.
(d) A Protected Party shall, on receiving a payment from an
Obligor under this Clause 14.3, notify the Agent.
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14.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party
determines in good faith that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) 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 Payment not been
made by the Obligor.
14.5 STAMP TAXES
The Obligor's Agent shall pay and, within ten 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.
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 Obligor's Agent shall,
within ten Business Days of a demand by the Agent, pay for the
account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a
result of (i) the introduction of or any change in (or in the
interpretation 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,
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
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funding or performing its obligations under any Finance
Document, Letter of Credit or Bank Guarantee.
15.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause
15.1 (INCREASED COSTS) shall notify the Agent of the event
giving rise to the claim as soon as reasonably practicable
after its relevant Facility Office has become aware of such
event giving rise to such claim, following which the Agent
shall promptly notify the Obligor's Agent.
(b) Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate confirming (in
reasonable detail) the amount of its Increased Costs.
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 paragraph (b) of
Clause 14.3 (TAX INDEMNITY) applied);
(iii) compensated for by the payment of the Mandatory Cost;
or
(iv) attributable to the wilful or grossly negligent
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 the Obligor's Agent or 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 the
Obligor's Agent or that Obligor;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration
proceedings,
the Obligor's Agent or that Obligor (as the case may be) shall
as an independent obligation, within three Business Days of
demand, indemnify each Finance Party to whom that Sum is due
against any cost, loss or liability arising out of or as a
result of the conversion including any discrepancy between (A)
the rate of exchange used to convert that Sum from the First
Currency into the Second Currency and (B) the rate or rates of
exchange available to that person at the time of its receipt
of that Sum.
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(b) The Obligor's Agent and 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 Obligor's Agent shall (or shall procure that an Obligor will),
within ten Business Days of demand, indemnify each Lender and each
Fronting Bank against any cost, loss or liability incurred by that
Lender or, as the case may be, Fronting Bank as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by the Obligor's Agent or an Obligor to pay any
amount due under a Finance Document on its due date, including
without limitation, any cost, loss or liability arising as a
result of Clause 30 (SHARING AMONG THE LENDERS);
(c) funding, or making arrangements to fund, its participation in
a Loan requested by a Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default
or negligence by that Lender alone);
(d) issuing or making arrangements to issue a Letter of Credit or
Bank Guarantee requested by a Borrower in a Utilisation
Request but not issued by reason of the operation of any one
or more of the provisions of this Agreement; or
(e) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by a Borrower or the
Obligor's Agent.
16.3 INDEMNITY TO THE AGENT
The Obligor's Agent shall promptly indemnify the Agent against any cost,
loss or liability incurred by the Agent (acting reasonably) as a result
of:
(a) investigating any event which it reasonably believes is a
Default; or
(b) entering into or performing any foreign exchange contract for
the purposes of Clause 6 (OPTIONAL CURRENCIES); 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 Obligor's
Agent, 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.
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17.2 LIMITATION OF LIABILITY
(a) The Obligor's Agent shall indemnify each Finance Party for all
costs and expenses reasonably incurred by that Finance Party
as a result of steps taken by it under Clause 17.1
(MITIGATION).
(b) A Finance Party is not obliged to take any steps under Clause
17.1 (MITIGATION) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
18. COSTS AND EXPENSES
18.1 TRANSACTION EXPENSES
The Obligor's Agent shall promptly on demand pay the Agent and the
Arrangers the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
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
Obligor's Agent shall, within ten Business Days of demand, reimburse the
Agent for the amount of all costs and expenses (including legal fees)
reasonably incurred by the Agent in responding to, evaluating,
negotiating or complying with that request or requirement.
18.3 ENFORCEMENT COSTS
The Obligor's Agent shall, within ten Business Days of demand, pay to
each Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement
of, or the preservation of any rights under, any Finance Document.
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SECTION 7
GUARANTEE
19. GUARANTEE AND INDEMNITY
19.1 GUARANTEE AND INDEMNITY
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by each
Borrower of all that Borrower's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever a Borrower
does not pay any amount when due under or in connection with
any Finance Document, that Guarantor shall immediately on
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:
(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;
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(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 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 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 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 Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any
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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 LIMITATION ON GERMAN OBLIGOR GUARANTEE
(a) To the extent that the guarantee and indemnity in this Clause
19 is given by a German Obligor which is constituted in the
form of a GmbH or GmbH & Co. KG (a "RELEVANT GERMAN OBLIGOR")
to guarantee obligations of its (direct or indirect)
shareholder or a person related to such shareholder within the
meaning of Sections 15 et seq. of the German Stock Corporation
Act (for clarification purposes, this does not include a
Subsidiary of such German Obligor), the Finance Parties agree
that the Agent shall not make any demand against such Relevant
German Obligor under the guarantee and indemnity until the
earlier of:
(i) 45 days after the notification in writing to such
Relevant German Obligor or its general partner, as the
case may be, by the Agent of the Agent's intention to
engage a firm of auditors as contemplated in paragraph
(b) below; and
(ii) the date on which the Auditors' Determination (as
defined in paragraph (e) below) is available to the
Agent, if such Auditors' Determination is up to date and
in any event prepared as of a date no earlier than 21
days prior to the date of enforcement.
(b) The Agent shall at all times, acting reasonably and subject to
the right of a Relevant German Obligor to itself engage a firm
of auditors in accordance with paragraph (d) below, have the
right to engage at its sole discretion and at the Relevant
German Obligor's expense a firm of auditors of international
standard and reputation which shall proceed to audit the
Relevant German Obligor or its general partner, as the case
may be, with a view to investigating to what extent the
Relevant German Obligor's or its general partner's, as the
case may be, net assets exceed its registered share capital
and to produce an Auditors' Determination on the basis set out
in paragraph (e) below.
(c) Each Relevant German Obligor or its general partner, as the
case may be, shall render all and any reasonable assistance
requested by the Agent for the purposes of facilitating the
audit referred to in paragraph (b) above and shall allow full
access to and inspection of its books and any other necessary
documents.
(d) Each Relevant German Obligor at all times shall be entitled
itself to engage a firm of auditors (subject to the prior
agreement of the Agent, not to be unreasonably withheld, as to
the identity of such firm of auditors if such Relevant German
Obligor intends to instruct a different firm of auditors than
that used most recently by it) to produce the Auditors'
Determination on the basis set out in paragraph (e) below.
(e) The determination by the auditors (the "AUDITORS'
DETERMINATION") of the amounts which may be claimed against a
Relevant German Obligor under the guarantee and indemnity in
this Clause 19 pursuant to Sections 30, 31 of the German
Limited Liability
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Companies Act (GMBH-GESETZ) in conjunction with Section 172a
of the German Commercial Code (HANDELSGESETZBUCH), as the case
may be, shall take into account the general accepted
accounting principles applicable in Germany (GAAP) as well as
the applicable court rulings and will be subject to the
adjustments referred to in paragraph (f) below. The Agent
shall, after it receives an Auditors' Determination produced
at its request, deliver the same to the Relevant German
Obligor in issue or its general partner, as the case may be.
The Relevant German Obligor shall, after it receives an
Auditors' Determination produced at its request, deliver the
same to the Agent. An Auditors' Determination shall, in the
absence of manifest error, be binding on the parties hereto.
(f) The maximum amount that may be claimed against a Relevant
German Obligor under this Clause 19 shall be the amount
specified in an Auditors' Determination on that Relevant
German Obligor subject to such Auditors' Determination being
up to date and in any event prepared as of a date no earlier
than 21 days prior to the date of enforcement PROVIDED THAT
for the purposes of the calculation of the amount to be
claimed the following balance sheet items shall be adjusted as
follows:
(i) the amount of any increase of capital (STAMMKAPITAL)
after the date hereof (A) that has been effected
without the prior written consent of the Agent
(acting on the instructions of the Majority Lenders),
(B) that has been effected out of retained earnings
(Kapitalerhohung aus Gesellschaftsmitteln) or (C) to
the extent that is not fully paid up, shall be
deducted from the capital (STAMMKAPITAL); and
(ii) loans and other contractual liabilities incurred in
violation of the provisions of the Finance Documents
shall be disregarded.
(g) If the 45 day period contemplated by paragraph (a) above has
passed and the Agent has either not received an Auditors'
Determination or has received an Auditors' Determination
which, due to lapse of time after its delivery, no longer
satisfies the criteria set out in paragraph (f) above, the
Agent may proceed to make a demand against the Relevant German
Obligor concerned under the guarantee and indemnity in this
Clause 19. The maximum amount that may be claimed against such
Relevant German Obligor in those circumstances will be the
amount determined by the Agent, in good faith by reference to
the most recent financial statements delivered pursuant to
paragraph (c) of Clause 21.1 (FINANCIAL STATEMENTS), as the
amount that would not lead to the situation that such Relevant
German Obligor would have insufficient assets to maintain its
or its general partner's capital (STAMMKAPITAL). For the
purpose of calculating such amount, the adjustments referred
to in paragraph (f) above will be made to the most recent
financial statements delivered pursuant to paragraph (c) of
Clause 21.1 (FINANCIAL STATEMENTS).
(h) If the amount payable under the guarantee and indemnity was
determined:
(i) in accordance with paragraph (g) above; or
(ii) by reference to an Auditors' Determination in
accordance with paragraph (f) above
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and an Auditors' Determination subsequently delivered to the
Agent confirms that the amount available under the guarantee
and indemnity at the time of enforcement was less than the
amount recovered by the Agent, the Agent agrees to release (or
instruct the Security Trustee to release) an amount of the
proceeds equal to the amount by which the recoveries from the
Relevant German Obligor exceeded the amount determined to be
available.
(i) Each Relevant German Obligor who is a Guarantor shall realise
in a situation where that Relevant German Obligor does not
have (or would not have as the result of the enforcement of
the guarantee in this Clause 19 if Clause 19.9 did not apply)
sufficient assets to maintain its or its general partner's
capital (STAMMKAPITAL), to the extent legally permissible and
commercially justifiable any and all of its assets that are
shown in the balance sheet with a book value (BUCHWERT) that
is significantly lower than the market value of the asset if
such asset is not necessary for such Relevant German Obligor's
business (BETRIEBSNOTWENDIG).
(j) Notwithstanding the above provisions of this Clause 19.9, the
provisions of paragraphs (a) to (i) (inclusive) of this Clause
19.9 shall not apply:
(i) during the Debtco Structure Period to MGG in its
capacity as a Guarantor to the extent that any
amounts are outstanding from MGG under Intra-Group
Loans made by Debtco to MGG at the time the relevant
demand is made against MGG under the guarantee and
indemnity contained in this Clause 19 (GUARANTEE AND
INDEMNITY);
(ii) to the extent any of the funds borrowed under this
Agreement have been onlent to a Relevant German
Obligor who is a Guarantor to the extent that any
amounts so on-lent to such Relevant German Obligor
are still outstanding at the time the relevant demand
is made against such Relevant German Obligor under
the guarantee and indemnity contained in this Clause
19 (GUARANTEE AND INDEMNITY).
19.10 LIMITATION ON US OBLIGOR GUARANTEE
Notwithstanding anything to the contrary contained herein or in any
other Finance Document, the maximum liability of each US Guarantor under
Clause 19.1 (GUARANTEE AND INDEMNITY) shall in no event exceed an amount
equal to the greatest amount that would not render such US Guarantor's
obligations hereunder and under the other Finance Documents subject to
avoidance under Section 548 of the Bankruptcy Code of the United States
of America (Title 11 of the United States of America Code) or any
equivalent provision of the laws of any state of the United States of
America or to being set aside, avoided or annulled under any applicable
laws of any state of the United States of America relating to fraudulent
transfers or fraudulent obligations.
19.11 LIMITATION ON FRENCH OBLIGOR GUARANTEE
Notwithstanding anything to the contrary contained herein or in any
other Finance Document, the liability of each French Guarantor:
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19.11.1 shall not include any obligation which if incurred would
constitute the provision of financial assistance within the
meaning of Article 225-216 of the French Code of Commerce;
19.11.2 shall be limited to an amount not exceeding at any time the
greater of:
(a) the equivalent in euros of the Utilisations (plus any
accrued interest commission and fee thereon) on-lent
to that French Guarantor calculated by the Agent on
the date on which such Utilisation(s) are made; and
(b) 90% of the greater of:
(i) the Net Asset Value of that French Guarantor
calculated by reference to the most recent
audited financial statements of that French
Guarantor available at the date it became a
Guarantor; and
(ii) the Net Asset Value of that French Guarantor
calculated by reference to the most recent
audited financial statements of that French
Guarantor available at the date on which the
relevant demand is made on it pursuant to
this Clause 19.
For the purposes of this Clause 19.11, "Net Asset Value" of a
French Guarantor means the capitaux propres (as defined under
the provisions of French accounting laws, decrees and
regulations consistently applied) of that French Guarantor. A
certificate of the statutory auditors of a French Guarantor as
to the Net Asset Value shall be prima facie evidence as to the
Net Asset Value of that French Guarantor.
19.12 LIMITATION ON LUXEMBOURG OBLIGOR
Notwithstanding anything to the contrary contained herein or in any
other Finance Document, the liability of any Luxembourg Obligor shall
not include any obligation which if incurred would constitute unlawful
financial assistance or misuse of corporate assets pursuant to the
provisions of the amended Luxembourg Companies Act dated 10 August 1915.
19.13 THIRD PARTY RIGHTS OF HEDGE COUNTERPARTIES
Any Hedge Counterparty which is not a Party but which is a Finance Party
may enjoy the benefit of and enforce the terms of this Clause 19
(GUARANTEE AND INDEMNITY) in accordance with the provisions of the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTATIONS
20.1 SIGNING REPRESENTATIONS OF THE COMPANY
Subject to matters specifically identified and disclosed against
particular representations contained in the Finance Disclosure Letter,
the Company makes the following representations and warranties to each
Finance Party on the date of this Agreement:
(a) the representations and warranties set out in Clause 20.4
(STATUS) to Clause 20.10 (NO FILING OR STAMP TAXES) in
relation to itself only;
(b) the representations and warranties set out in Clause 20.24
(REPORTS), Clause 20.25 (BUSINESS PLAN) and Clause 20.27
(GROUP STRUCTURE).
20.2 CLOSING REPRESENTATIONS
Subject to matters specifically identified and disclosed against
particular representations contained in the Finance Disclosure Letter,
during the Closing Period, the Closing Representations are deemed to be
made by the Obligor's Agent and each Obligor (by reference to the facts
and circumstances then existing) to the Finance Parties on each of the
following days or dates if such day or date falls within the Closing
Period:
(a) the date of each Utilisation Request and the first day of each
Interest Period and the first day of each Term;
(b) the day on which a company becomes (or it is proposed that a
company becomes) an Additional Obligor.
20.3 OTHER REPRESENTATIONS
(a) Subject to matters specifically identified and disclosed
against particular representations contained in the Finance
Disclosure Letter, the Obligor's Agent and each Obligor make
the representations and warranties set out in Clause 20.12 (NO
MISLEADING INFORMATION) to the Finance Parties on the date on
which the Information Memorandum is approved by the Obligor's
Agent and (save as disclosed in writing by the Obligor's Agent
to the Agent after approval of such Information Memorandum and
prior to a Syndication Date) on each Syndication Date.
(b) Subject to matters specifically identified and disclosed
against particular representations contained in the Finance
Disclosure Letter the Repeating Representations are deemed to
be made by the Obligor's Agent and each Obligor (by reference
to the facts and circumstances then existing) to the Finance
Parties on:
(i) the date of each Utilisation Request, the first day of
each Interest Period and the first day of each Term
other than any such day or date falling within the
Closing Period; and
(ii) the day on which a company becomes (or it is proposed
that a company becomes) an Additional Obligor, other
than any such day falling within the Closing Period.
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(c) The representations and warranties set out in Clause 20.26
(BUDGETS) shall be deemed to be made by the Obligor's Agent
and MGG to the Finance Parties on the date each Budget is
delivered to the Agent.
(d) On each date that the Obligor's Agent is deemed to make the
Closing Representations or the Repeating Representations it
shall be deemed to make those Closing Representations or
Repeating Representations (as the case may be) on behalf of
itself and also in respect of Newco 2 and the Company.
20.4 STATUS
(a) It is a corporation or company, duly incorporated with limited
liability and validly existing under the law of its
jurisdiction of incorporation or a partnership duly formed
with limited liability.
(b) It and each of its Subsidiaries has the power to own its
assets and carry on its business as it is being conducted.
(c) Each Borrower is acting on its own account when entering into
this Agreement and drawing Loans under this Agreement.
20.5 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Transaction
Document to which it is a party are, subject to the Reservations, legal,
valid, binding and enforceable obligations.
20.6 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and of the transactions
contemplated by, the Transaction 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 and (in the case of MGG) its
constitutional documents and those of any member of the MGG
Group; or
(c) any agreement or instrument binding upon it or any member of
the Group or any of its or any member of the Group's assets,
to the extent that such a conflict would reasonably be
expected to have a Material Adverse Effect.
20.7 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 Transaction Documents to which it is a party and the
transactions contemplated by those Transaction Documents. No limit on
its powers will be exceeded as a result of the borrowings, granting of
Security or giving of guarantees by it contemplated by the Finance
Documents to which it is a party.
20.8 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 Transaction Documents to
which it is a party; and
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(b) subject to the Reservations, to make the Transaction Documents
to which it is a party admissible in evidence in its
jurisdiction of incorporation,
have been obtained or effected and are in full force and effect, save
for any filings or registrations required in relation to the Security
constituted by any Security Document which filings or registrations will
be made promptly after execution of the relevant Security Document and
in any event within applicable time limits.
20.9 GOVERNING LAW AND ENFORCEMENT
(a) Subject to the Reservations, the choice of English law as the
governing law of the Finance Documents (or, in respect of any
Subordination Agreements or Security Documents to which it is
a party, the relevant governing laws of such Subordination
Agreements or Security Documents) will be recognised and
enforced in its jurisdiction of incorporation.
(b) Subject to the Reservations, any judgment obtained in England
in relation to a Finance Document (or, in respect of any
Subordination Agreements or Security Documents to which it is
a party, any judgement obtained in the courts which are
expressed to have jurisdiction to hear disputes under such
Subordination Agreements or Security Documents) will be
recognised and enforced in its jurisdiction of incorporation.
20.10 NO FILING OR STAMP TAXES
Save to the extent identified in any legal opinion delivered pursuant to
Clause 4 (CONDITIONS OF UTILISATION) or Clause 26 (CHANGES TO THE
OBLIGORS), under the law of its jurisdiction of incorporation it is not
necessary that the Finance Documents which have been executed be filed,
recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to such Finance Documents or the transactions
contemplated by such Finance Documents. Any such requirements identified
in any such legal opinions will promptly be effected or paid either (in
respect of the Obligor's Agent) after the date of this Agreement or (in
respect of an Additional Obligor) after it becomes a Party.
20.11 NO DEFAULT
(a) No Event of Default is continuing or would reasonably be
expected to result from the making of any Utilisation.
(b) No other event or circumstance is outstanding which
constitutes a default under any other agreement or instrument
which is binding on it or any of its Subsidiaries or to which
its (or its Subsidiaries') assets are subject which would
reasonably be expected to have a Material Adverse Effect.
20.12 NO MISLEADING INFORMATION
(a) So far as it is aware after due and careful enquiry, any
material factual information provided by it or any of its
Subsidiaries (or, in the case of MGG, any of its Holding
Companies) (in each case taken as a whole) for the purposes of
the Information Memorandum 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.
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(b) The financial projections contained in the Information
Memorandum have been prepared on the basis of recent
historical information and on the basis of reasonable
assumptions at the time of such preparation.
(c) Nothing has occurred or been omitted from the Information
Memorandum and no information has been given or withheld that
results in the material information contained in the
Information Memorandum (taken as a whole) being untrue or
misleading in any material respect.
(d) So far as it is aware after reasonable enquiry, all material
written information (taken as a whole) (other than the
Information Memorandum) supplied by any member of the Group is
true, complete and accurate in all material respects as at the
date it was given and is not misleading in any material
respect.
20.13 FINANCIAL STATEMENTS
The Original Financial Statements and (in the case of each of Newco 2,
MGG and each Borrower) its most recent audited financial statements
delivered to the Agent pursuant to paragraph (a) or (d) of Clause 21.1
(FINANCIAL STATEMENTS):
(a) were prepared in accordance with Relevant GAAP consistently
applied; and
(b) fairly represent its financial condition and operations
(consolidated in the case of (1) MGG, with respect to the
Original Financial Statements and (2) Newco 2, with respect to
its financial statements delivered to the Agent pursuant to
Clause 21.1 (FINANCIAL STATEMENTS)) during the relevant
financial year.
20.14 FINANCIAL YEAR END
Except as permitted under Clause 23.31 (ACCOUNTING REFERENCE DATE) the
financial year end of the Newco 2 Group is 31 December.
20.15 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
20.16 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which would reasonably be expected to
have a Material Adverse Effect have been started or (to the best of its
knowledge and belief) threatened against it or any of its Subsidiaries.
No labour disputes, which would reasonably be expected to have a
Material Adverse Effect, have been started or (to the best of its
knowledge and belief) threatened against it or any of its Subsidiaries.
20.17 ENVIRONMENTAL COMPLIANCE
It and each of its Subsidiaries has performed and observed in all
material respects all Environmental Law, Environmental Permits and all
other material covenants, conditions, restrictions or agreements
directly or indirectly concerned with any contamination, pollution or
waste or the release or discharge of any toxic or hazardous substance in
connection with any real property which is or was at any time owned,
leased or occupied by it, or any of its
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Subsidiaries or on which it or any of its Subsidiaries has conducted
any activity where failure to do so would reasonably be expected to
have a Material Adverse Effect.
20.18 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against it or any of its
Subsidiaries where that claim would reasonably be expected to have a
Material Adverse Effect.
20.19 TAXATION
(a) It and each of its Subsidiaries which is a Material Company
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) it has maintained adequate
reserves for those Taxes and (iii) payment can be lawfully
withheld or any such non-payment or non-discharge would not
reasonably be expected to have a Material Adverse Effect).
(b) It and each of its Subsidiaries which is a Material Company is
not overdue in the filing of any Tax returns where such late
filing would reasonably be expected to have a Material Adverse
Effect.
(c) No claims are being or are reasonably likely to be asserted
against it or any of its Subsidiaries which is a Material
Company with respect to Taxes which would reasonably be
expected to have a Material Adverse Effect.
20.20 SECURITY AND FINANCIAL INDEBTEDNESS
(a) Save for Permitted Security, no Security exists over all or
any of the present or future revenues, assets or undertakings
of it or any Material Company or Obligor.
(b) Save for Permitted Indebtedness, neither it nor any of its
Consolidated Subsidiaries has any Financial Indebtedness.
(c) The execution of the Finance Documents to which it is a party
and the exercise by it of its rights thereunder will not
result in the existence or imposition of nor oblige any
Material Company or any Obligor to create any Security (save
for Permitted Security) in favour of any person over any of
its present or future revenues, assets or undertakings.
20.21 SECURITY INTERESTS
(a) It is, or will be upon execution of the relevant Security
Documents on the Closing Date occurring (if later), the
absolute legal and, where applicable, beneficial owner of all
the assets over which it purports to create Security pursuant
to the Security Documents and (subject to the Reservations)
each Security Document to which it is a party creates the
Security which that Security Document purports to create or,
if that Security Document purports to evidence Security,
accurately evidences Security which has been validly created.
(b) The shares and, if applicable, limited partnership interests
charged, mortgaged or pledged by it pursuant to the Security
Documents are all fully paid up (and in the case of limited
partnership interests have not been repaid) and not subject to
any option to
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purchase or similar rights save that 66 2/3% of the shares in
Newco 2 are subject to the Call Option (as defined in the
Business Combination Agreement).
20.22 INTELLECTUAL PROPERTY
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its or its Subsidiaries' Intellectual
Property which would reasonably be expected to have a Material Adverse
Effect.
20.23 GOOD TITLE TO ASSETS
It and each of its Subsidiaries has good title to or valid leases of or
other appropriate licence, authorisation or consent to use all assets
necessary to carry on its business as presently conducted, the absence
of which would reasonably be expected to have a Material Adverse Effect.
20.24 REPORTS
Having made all reasonable enquiries in the circumstances of the
Acquisition and the negotiation of the Acquisition Documents:
(a) it is not aware of any materially adverse inaccuracy as to
factual matters relating to either the MGG Group or Syngas
contained in the Reports; and
(b) it is not aware of any facts or matters not stated in the
Reports, the omission of which make any statements contained
therein (taking the Reports as a whole) misleading in any
materially adverse respect.
20.25 BUSINESS PLAN
(a) The Business Plan has been prepared using accounting policies,
practices and procedures consistent, in all material respects,
with IAS.
(b) After due and careful consideration, having made all
reasonable efforts to make due and careful enquiries in
connection with the Acquisition (including, without
limitation, discussing the Business Plan with relevant
managers employed by members of the MGG Group), it:
(i) is not aware of any material inaccuracy as to factual
matters relating to the Group contained in the
Business Plan;
(ii) does not regard as unreasonable, or to any material
extent, unattainable, any of the forecasts or
projections set out in the Business Plan;
(iii) believes that the Cost Savings will in all material
respects be achieved on or before the fourth
anniversary of the Closing Date;
(iv) believes the assumptions, upon which the forecasts
and projections in relation to the Group contained in
the Business Plan are based, to be fair and
reasonable in all material respects at the time made;
(v) is not aware of any facts or matters omitted from the
Business Plan or the Original Financial Statements,
the omission of which make any statements contained
therein (taken as a whole) misleading in any material
respect;
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(vi) has made full disclosure of all material facts
relating to the Group to all the persons responsible
for the preparing of the Business Plan; and
(vii) believes that the disposal of sufficient of the
shares of the companies identified in the Disposal
Plan and/or the assets of such companies to realise
the amount of Net Disposal Proceeds assumed in the
Business Plan is achievable before the Term Disposal
Facility Repayment Date,
PROVIDED THAT the above representations in this Clause 20.25
are given subject to the qualification that projections are
based on estimates and assumptions and are subject to
business, economic and competitive uncertainties and
contingencies and that accordingly no assurances can be given
or representation made that any of the assumptions are
correct, that projections will be attained or that
forward-looking statements expressed in the projections will
correspond to actual results.
20.26 BUDGETS
It:
(a) regards (as at the date each Budget is delivered to the Agent)
as neither unreasonable, nor to any material extent
unattainable, any of the forecasts or projections set out in
the latest Budget delivered under Clause 21.3 (BUDGETS) or
pursuant to Schedule 2 (CONDITIONS PRECEDENT);
(b) believes (having made all reasonable enquiries) the
assumptions, upon which the forecasts and projections in
relation to the Newco 2 Group contained in the latest Budget
delivered under Clause 21.3 (BUDGETS) or pursuant to Schedule
2 (CONDITIONS PRECEDENT) are based, to be fair and reasonable;
and
(c) has, to the best of its knowledge and belief (having made all
reasonable efforts to make due and careful enquiry), made full
disclosure of all material facts relating to the Newco 2 Group
to all the persons responsible for the preparing of the latest
Budget delivered under Clause 21.3 (BUDGETS) or pursuant to
Schedule 2 (CONDITIONS PRECEDENT),
PROVIDED THAT the above representations in this Clause 20.26 are given
subject to the qualification that projections are based on estimates and
assumptions and are subject to business, economic and competitive
uncertainties and contingencies and that accordingly no assurances can
be given or representation made that any of the assumptions are correct,
that projections will be attained or that forward-looking statements
expressed in the projections will correspond to actual results.
20.27 GROUP STRUCTURE
The Group Structure Chart delivered to the Agent pursuant to Clause 4
(CONDITIONS OF UTILISATION) or any revised group structure chart
delivered to the Agent pursuant to Clause 23.32 (REVISED GROUP
STRUCTURE) is true, complete and accurate in all material respects.
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20.28 OWNERSHIP OF OBLIGORS
From the Closing Date (save as expressly contemplated in the Business
Combination Agreement on the terms and conditions set out in the
Business Combination Agreement):
(a) the Company will directly and beneficially own 100% of the
issued shares of Newco 2; and
(b) Newco 2 will directly and beneficially own 100% of the issued
shares of MGG (save that during the Debtco Structure Period
Newco 2 will directly and beneficially own 100% of the issued
shares of Debtco and Debtco will directly and beneficially own
100% of the shares of MGG and until the contribution of the
Family MGG Shares to Newco 2 in accordance with the BCA
becomes effective (as referred to in paragraph 4(d) of Part I
of Schedule 2 (CONDITIONS PRECEDENT)) Newco 2 will directly
and beneficially own 66 2/3% of the issued shares of MGG).
20.29 CONSENTS AND APPROVALS
All necessary consents, licences, authorisations and approvals to the
transactions constituted by the Transaction Documents have been obtained
and all consents, licences, authorisations and other approvals necessary
for the conduct of the business of the Group as a whole have been
obtained, their terms and conditions have been complied with in all
material respects and they have not been and, so far as it is aware,
will not be revoked or otherwise terminated, save in each case to the
extent that the absence of any such consent or filing or variation would
not reasonably be expected to have a Material Adverse Effect.
20.30 ACQUISITION DOCUMENTS
(a) There has been no amendment, variation or waiver of the terms
of any of the Acquisition Documents save for any amendments,
variations or waivers:
(i) approved in writing by the Agent (acting on the
instructions of the Majority Lenders); or
(ii) which are of a minor or technical nature or which
could not reasonably be considered to be adverse in
any material respect to the interests of any of the
Finance Parties.
(b) The Acquisition Documents contain all of the terms of the
agreement between the Investors, the members of the Group and
the Vendor in relation to the Acquisition (other than
agreements made between the Investors inter se).
(c) It is not aware of any event, fact or circumstance which would
constitute a material breach of warranty or misrepresentation
or material breach of contract in respect of an Acquisition
Document, or otherwise allow it to make any other claim (other
than minor claims of a non material nature) against either the
Vendor or an Affiliate of the Vendor.
20.31 ISSUE OF SHARE CAPITAL
There are no agreements in force to which any member of the Group is
party 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
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share or partnership interest (or equivalent) of any member of the MGG
Group (including an option or right of pre-emption or conversion) other
than:
(a) pursuant to the Singapore Separation Agreement;
(b) as expressly provided in the Shareholders' Agreement;
(c) rights under employee share ownership plans in relation to
shares in members of the MGG Group (other than MGG);
(d) rights under shareholders' or joint venture agreements, or
under the constituent documents of the relevant entity, held
by minority shareholders of members of the MGG Group (other
than MGG) or by their Affiliates; and
(e) the existing agreement between ▇▇▇▇ and Massy Gas Products
Ltd. ("NMG"), MGG and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Tobago Limited
("MTTL") pursuant to which NMG is required to subscribe for
26% of the issued share capital of MTTL.
20.32 NO TRADING
Save as contemplated by, or otherwise in connection with, the
Transaction Documents and the transactions contemplated thereby, neither
the Company or Newco 2 or Debtco or any Treasury Borrower has traded or
undertaken any commercial activities of any kind or has any liabilities
or obligations (actual or contingent).
20.33 PENSIONS
Each member of the Group is in compliance with all applicable laws and
contracts relating to the pension schemes (if any) operated by it or in
which it participates, save where any failure to comply would not
reasonably be expected to have a Material Adverse Effect, and (to the
extent required by applicable law) each such pension scheme is fully
funded based on reasonable actuarial assumptions and administered and
funded in accordance with applicable law (save as would not reasonably
be expected to have a Material Adverse Effect).
20.34 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 would reasonably be expected to have a Material
Adverse Effect.
(b) Each Employee Plan is in compliance in form and operation with
ERISA and the Code and all other applicable laws and
regulations save where any failure to comply would not
reasonably be expected to have a Material Adverse Effect.
(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
Obligor's Agent, nothing has occurred since the date of such
determination that would adversely affect such determination
where such adverse effect would reasonably be expected to have
a Material Adverse Effect (or, in the case of an Employee Plan
with no determination,
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nothing has occurred that would adversely affect such
qualification where such adverse effect would reasonably be
expected to have a Material Adverse Effect).
(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 each such
Employee Plan (based on the assumptions used for the purposes
of Statement of Financial Accounting Standards No. 87) as of
the date of the most recent financial statement reflecting
such amounts or, if, as of such date, additional contributions
are required, the Obligor's Agent does not believe that the
making of such additional contribution to the extent necessary
to satisfy legal requirements would reasonably be expected to
have a Material Adverse Effect.
(e) There are no actions, suits or claims pending against an
Employee Plan (other than routine claims for benefits) or, to
the knowledge of the Obligor's Agent, any US Group Member or
any ERISA Affiliate threatened, which would reasonably be
expected to be asserted successfully against any Employee
Plan, as to which there is a reasonable possibility of such an
assertion and which would reasonably be expected either singly
or in the aggregate to have a Material Adverse Effect.
(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
thereby, the terms of such Employee Plan, or any contract or
agreement requiring contributions to an Employee Plan save
where any failure to comply would not reasonably be expected
to have a Material Adverse Effect.
(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, except where any such ceasing of
operations, withdrawal as a substantial employer or ceasing to
make contributions would not reasonably be expected to have a
Material Adverse Effect.
(h) Neither any US Group Member nor any ERISA Affiliate has
incurred or reasonably expects to incur any liability to PBGC
save for any liability which would not reasonably be expected
to have a Material Adverse Effect.
20.35 MARGIN STOCK
(a) No US Group Member is engaged principally, or as one of its
important activities, in the business of owning or extending
credit for the purpose of purchasing or carrying any Margin
Stock.
(b) The Facilities will not be used, directly or indirectly, for
any purpose which might constitute all or any part of the
Facilities a "purpose credit" within the meaning of Regulation
U or Regulation X.
(c) No US Group Member or any agent acting on its behalf has taken
or will take any action which might cause the Finance
Documents to violate any regulation of the Board of Governors
of the Federal Reserve System of the United States.
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20.36 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.
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. Save as otherwise provided in
the Finance Documents (in particular, but without limitation, pursuant
to Clause 25.7 (DISCLOSURE OF INFORMATION)) and save for disclosure to
their professional advisers, the Lenders shall treat information
received pursuant to this Clause 21 as confidential.
21.1 FINANCIAL STATEMENTS
The Obligor's Agent shall supply to the Agent in sufficient copies for
all the Lenders:
(a) as soon as the same become available, but in any event within
120 days after the end of each of the financial years of Newco
2 which are for the twelve months ending on 31 December:
(i) the audited consolidated financial statements of
Newco 2 for that financial year; and
(ii) the unconsolidated audited financial statements of
each Borrower for that financial year; and
(iii) the audited consolidated financial statements of MGG
for that financial year; and
(b) as soon as the same become available, but in any event within
45 days after the end of each quarter of each of the financial
years of Newco 2, the consolidated financial statements of
Newco 2 for that financial quarter consisting of a balance
sheet and profit and loss statement and cash flow statement
for such financial quarter (and, if any financial quarter of
Newco 2 does not end on a Quarter Date, as soon as the same
become available, but in any event within 45 days after each
Quarter Date, the consolidated financial statements of Newco 2
for the three months ending on that Quarter Date consisting of
a balance sheet and profit and loss statement and cash flow
statement for such three month period); and
(c) as soon as the same become available, but in any event within
30 days after the end of each calendar month, commencing with
the first full calendar month after the Closing Date, the
consolidated profit and loss statement of Newco 2 for that
calendar month showing the performance relative to the Budget
during such calendar month and for the calendar year to date,
together with the amount of Capital Expenditure for that
calendar month and the financial liabilities of the Newco 2
Group as at the end of such calendar month (such profit and
loss statement to provide as a minimum the information
provided in the monthly management reports as at the date of
this Agreement); and
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(d) as soon as the same become available, but in any event within
120 days after the end of each calendar year in which the
financial year of Newco 2 ending on 31 December is for a
period of less than twelve months:
(i) the pro forma summary of the audited consolidated
financial statements of Newco 2 for that calendar
year; and
(ii) the pro forma summary of the unconsolidated audited
financial statements of each Borrower for that
calendar year; and
(iii) the pro forma summary of the audited consolidated
financial statements of MGG for that calendar year;
and
(e) as soon as the same become available, but in any event within
45 days of the end of each financial quarter of MGG ending
after 1 January 2001 but on or before the end of the financial
quarter in which the Closing Date occurs, the consolidated
financial statements of MGG for that financial quarter
consisting of a balance sheet and profit and loss statement
and cash flow statement for such financial quarter.
21.2 COMPLIANCE CERTIFICATES
(a) The Obligor's Agent shall supply to the Agent, with each set
of financial statements delivered pursuant to paragraph (a)(i)
or (b) or (d) of Clause 21.1 (FINANCIAL STATEMENTS), a
Compliance Certificate signed by any Prokurist of Newco 2
setting out (in reasonable detail) computations as to
compliance with Clause 22 (FINANCIAL COVENANTS) and Clause
23.30 (GUARANTOR GROUP AND SECURITY COVERAGE) and the Material
Companies falling within paragraphs (b) and (c) of the
definition of Material Company as at the date as at which
those financial statements were drawn up and the details
listed in paragraphs (i), (ii) and (iii) of the definition of
Relevant Debt Relief Amount relating to any disposals during
the period to which such financial statements relate which it
wishes to include for the purposes of paragraphs (a) and (b)
of the definition of Relevant Debt Relief Amount.
(b) The Obligor's Agent shall supply to the Agent with each set of
financial statements delivered pursuant to paragraph (a)(i) or
(d)(i) of Clause 21.1 (FINANCIAL STATEMENTS) an Auditor's
Report reporting on the Compliance Certificate accompanying
such financial statements.
21.3 BUDGETS
(a) The Obligor's Agent shall, as soon as the same become
available, and in any event no later than 15 days prior to the
beginning of each calendar year, deliver to the Agent in
sufficient copies for the Lenders an annual budget (in a form
agreed with the Agent) prepared by reference to each calendar
month in respect of such calendar year including:
(i) forecasts of any projected disposals (including
timing and amount of any projected disposals) on a
consolidated basis of the Newco 2 Group for such
calendar year;
(ii) projected profit and loss accounts (including
projected turnover and operating costs) and projected
balance sheets and cash flow statements, together
with the
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main operating assumptions relating to such
projected financial statements, on a monthly basis,
for such calendar year on a consolidated basis for
the Newco 2 Group;
(iii) revisions to the projections set out in the Business
Plan, together with the main operating assumptions
relating thereto, for such calendar year until 31
December 2010, based on the financial condition and
performance and prospects of the Newco 2 Group at
such time;
(iv) projected Capital Expenditure to be incurred on a
monthly basis for such calendar year on a
consolidated basis for the Newco 2 Group;
(v) projected EBIT and EBITDA as at the end of each
calendar month in such calendar year; and
(vi) a qualitative analysis and commentary from the
management on its proposed activities for such
calendar year.
(b) The Obligor's Agent shall, as soon as the same become
available, and in any event no later than 15 August in each
year, deliver to the Agent in sufficient copies for the
Lenders an update to the annual budget previously delivered to
the Agent pursuant to paragraph (a) above in respect of that
year.
(c) The Obligor's Agent shall provide the Agent with details of
any material changes in the projections delivered under this
Clause 21.3 as soon as reasonably practicable after it becomes
aware of any such change.
21.4 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Obligor's
Agent pursuant to Clause 21.1 (FINANCIAL STATEMENTS) shall be
certified by a board member of the relevant company as fairly
presenting in all material respects its financial condition as
at the date as at which those financial statements were drawn
up.
(b) Subject to paragraph (d) below, the Obligor's Agent shall
procure that each set of financial statements of the Newco 2
Group or a Borrower delivered pursuant to Clause 21.1
(FINANCIAL STATEMENTS) is prepared using Relevant GAAP, and in
the case of the consolidated financial statements of Newco 2
only, accounting practices and financial reference periods
consistent with those applied in the preparation of the
Original Financial Statements unless, in relation to the
consolidated financial statements of Newco 2, it notifies the
Agent that there has been a change in IAS, or the accounting
practices or reference periods, and Newco 2's auditors deliver
to the Agent:
(i) a description of any change necessary for those
financial statements to reflect the IAS, accounting
practices and reference periods upon which the
Original Financial Statements were prepared; and
(ii) sufficient information, in form and substance as may
be reasonably required by the Agent, to enable the
Lenders to determine whether Clause 22 (FINANCIAL
COVENANTS) has been complied with and make an
accurate comparison between
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the financial position indicated in those financial
statements and the Original 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
Original Financial Statements were prepared.
(c) If the Obligor's Agent notifies the Agent of a change in
accordance with paragraph (b) above then the Obligor's Agent
and Agent (acting on the Majority Lenders' instructions) 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.
(d) If the Obligor's Agent notifies the Agent in writing that it
wishes the consolidated financial statements of Newco 2 and
MGG to be delivered under Clause 21.1 (FINANCIAL STATEMENTS)
to be prepared using US GAAP and provides with such
notification a description from Newco 2's auditors of the
differences for Newco 2's and MGG's consolidated financial
statements between US GAAP and IAS as applied to the Original
Financial Statements, then the Obligor's Agent and the Agent
(acting on the Majority Lenders' instructions) shall enter
into negotiations in good faith with a view to agreeing any
amendments to this Agreement which may be necessary to ensure
that if in future the consolidated financial statements of
Newco 2 were to be permitted to be delivered pursuant to
Clause 21.1 (FINANCIAL STATEMENTS) prepared using US GAAP
rather than IAS such change would not result in any material
alteration to the commercial effect of the terms of this
Agreement. If any amendments are agreed they shall take effect
and be binding on each of the Parties in accordance with their
terms and future consolidated financial statements of Newco 2
may be delivered pursuant to Clause 21.1 (FINANCIAL
STATEMENTS) prepared using US GAAP.
(e) Each Lender acknowledges that it shall not unreasonably
withhold or delay its consent in relation to any request from
the Obligor's Agent under paragraphs (c) or (d) of this Clause
21.4.
21.5 INFORMATION: MISCELLANEOUS
The Obligor's Agent shall supply to the Agent (in sufficient copies for
all the Lenders, if the Agent so requests):
(a) all documents dispatched by the Obligor's Agent to its
shareholders (or any class of them) or its creditors generally
pursuant to applicable legal requirements at the same time as
they are dispatched;
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(b) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which
are current, threatened or pending against any member of the
MGG Group, and which would reasonably be expected to have a
Material Adverse Effect;
(c) promptly notify the Agent in writing upon becoming aware of
any pollution or contamination of the environment in respect
of which any member of the Group may incur expenditure in
excess of EUR10,000,000 (or its equivalent) to clean up or
remedy together with details of such pollution or
contamination; and
(d) promptly, such further information regarding the financial
condition, business and operations of any member of the Group
as any Finance Party (through the Agent) may reasonably
request.
21.6 NOTIFICATION OF DEFAULT
Each Obligor shall notify the Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence (unless that Obligor is aware that a notification has already
been provided by another Obligor).
21.7 ERISA RELATED INFORMATION
(a) The Obligor's Agent shall procure that each US Group Member
and each ERISA Affiliate (each a "RELEVANT COMPANY" for the
purposes of this Clause 21.7) 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 Agent a written statement of the Chief
Financial Officer of such Relevant Company describing such
ERISA Event or waiver request and the action, if any, which it
proposes to take with respect thereto and a copy of any notice
filed with the PBGC or the IRS pertaining thereto.
(b) The Obligor's Agent shall procure that each Relevant Company
shall simultaneously with the date that any Relevant Company
files a notice of intent to terminate any Title IV Plan, if
such termination would require material additional
contributions in order to be considered a standard termination
within the meaning of Section 4041(b) of ERISA, deliver to the
Agent a copy of each notice.
22. FINANCIAL COVENANTS
22.1 FINANCIAL DEFINITIONS
In this Clause 22:
"CAPITAL EXPENDITURE" means any expenditure or obligations in respect of
expenditure (including any obligation in respect of the capital element
of any Finance Lease) for the acquisition of equipment, fixed assets,
real property, intangible assets and other assets of a
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capital nature, or for the replacements or substitution therefor or
additions or improvements thereto, that in any such case have a useful
life or more than one year together with the costs incurred in
connection therewith but excluding any cash payments in respect of
expenditure on Permitted Acquisitions and excluding any expenditure
or obligations in respect of expenditure in respect of Restructuring
Expenses and excluding any expenditure eliminated on consolidation.
"CASH" means, at any time, cash at bank and credited to an account in
the sole name of a member of the Newco Group.
"CASH EQUIVALENT INVESTMENTS" means certificates of deposit and debt
securities which are not convertible into any other form of security,
are not issued or guaranteed by any member of the Newco 2 Group and have
a maturity of twelve months or less.
"CURRENT ASSETS" means the aggregate of inventories of each member of
the Newco Group (including advanced payments made), trade accounts
receivable of each member of the Newco 2 Group and receivables of each
member of the Newco 2 Group relating to long-term construction contracts
but excluding amounts receivable in respect of Restructuring Expenses
and Exceptional Items.
"CURRENT LIABILITIES" means the aggregate of trade accounts payable by
each member of the Newco 2 Group and advance payments received by each
member of the Newco 2 Group on orders (in each case, falling due within
twelve months from the date of computation) but excluding liabilities in
respect of Restructuring Expenses and Exceptional Items.
"EBITDA" means, for any period, the consolidated profit from operations
of the Newco 2 Group for that period and, in respect of any part (the
"PRE-CLOSING PERIOD") of such period which falls prior to the Closing
Date, the consolidated profit from operations of the MGG Group for that
Pre-Closing Period:
(a) excluding any Exceptional Items;
(b) adding back (in each case only to the extent deducted in
calculating consolidated profit from operations):
(i) any amount attributable to amortisation of intangible
assets (including goodwill);
(ii) any amount attributable to depreciation of tangible
assets;
(iii) any amount attributable to Restructuring Expenses
(which is not otherwise excluded by virtue of being
an Exceptional Item); and
(iv) any amount of expense incurred that is attributable
to financing or refinancing Unconsolidated Debt;
(c) adding any cash dividends declared by any person which is not
a member of the MGG Group in favour of a member of the MGG
Group during that period; and
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(d) deducting (to the extent otherwise included) any amounts
returned to any member of the MGG Group in respect of monies
paid by that member of the MGG Group in relation to
Unconsolidated Debt,
PROVIDED THAT no amount shall be excluded, deducted or added back more
than once.
"EXCEPTIONAL ITEMS" means items which are required (due to their size,
nature or incidence) to be disclosed separately in accordance with
paragraphs 16 - 18 of international accounting standard 8 of IAS.
"EXCESS CASH FLOW" means, for any period for which it is being
calculated, Operating Cash Flow for that period less Total Debt Service
for that period but adding back (to the extent included in Total Debt
Service) mandatory prepayments made during that period pursuant to
Clause 9.4 (EXCESS CASH FLOW) and Clause 9.5 (ASSET DISPOSALS).
"FINANCIAL QUARTER" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"NET CASH INTEREST PAYABLE" means, in respect of any period and without
double counting, the aggregate amount of the interest (including the
interest element of any Finance Lease), commission, fees, discounts and
other finance payments payable by the Newco 2 Group in respect of any
Indebtedness for Borrowed Money (other than arising under permitted
Intra-Group Loans) which have accrued during that period,
(a) ADDING any commission, fees, discounts and other finance
payments expensed by the Newco 2 Group under any interest rate
hedging arrangement during that period;
(b) DEDUCTING any commission, fees, discounts and other finance
payments receivable by the Newco 2 Group during that period
under any interest rate hedging instrument permitted by this
Agreement;
(c) DEDUCTING any interest receivable by the Newco 2 Group on any
deposit or bank account during that period;
(d) EXCLUDING any capitalised interest in respect of the Mezzanine
Outstandings, any Direct Mezzanine Refinancing Facility and
any Refinancing Notes (for the avoidance of doubt, any
interest which has been capitalised in respect of the
Mezzanine Outstandings which becomes payable upon any
refinancing in full of the Mezzanine Facility permitted
hereunder shall be excluded pursuant to this paragraph (d));
(e) EXCLUDING (for the avoidance of doubt) any arrangement,
underwriting or other front end fees payable in respect of (or
any prepayment fees in respect of) facilities providing
Indebtedness for Borrowed Money; and
(f) EXCLUDING (for the avoidance of doubt) capitalised borrowing
costs relating to the construction of fixed assets PROVIDED
THAT such costs have been incurred as Capital Expenditure.
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"OPERATING CASH FLOW" means, in respect of any period, EBITDA for such
period after:
(a) adding back:
(i) any decrease in the amount of Working Capital at the
end of such a period compared against the Working
Capital at the start of such a period;
(ii) any cash receipt in respect of any Exceptional Item
(other than in respect of any disposal);
(iii) any increase in the amount of Working Capital
attributed to any increase of Current Assets in the
first two Financial Quarters ending after the Closing
Date related to the discontinuance of the Existing
Factoring Programme;
(iv) the book value of any disposal of assets in the
ordinary course of business during that period;
(v) any increases in long term provisions;
(vi) any indemnities received in cash by any member of the
MGG Group in relation to Unconsolidated Debt (or, to
the extent otherwise included, paid directly to the
creditor in respect thereof); and
(vii) receipts by any member of the Newco 2 Group in
respect of Taxes; and
(b) deducting:
(i) (to the extent otherwise included) any amount of
Capital Expenditure actually paid by any member of
the Newco 2 Group during that period (other than
Capital Expenditure using the Additional Basket)
pursuant to paragraph (c)(iii) of Clause 22.3
(CAPITAL EXPENDITURE);
(ii) any increase in the amount of Working Capital at the
end of such a period compared against the Working
Capital at the start of such a period;
(iii) (to the extent otherwise included) any amount
actually paid in respect of taxes on the profits of
any member of the Newco 2 Group;
(iv) any cash payment in respect of any Exceptional Item;
(v) (to the extent not deducted under paragraph (b) (iv)
above) any cash payment in respect of Restructuring
Expenses;
(vi) any cash investment in a person which is not a member
of the MGG Group other than in respect of
Unconsolidated Debt;
(vii) (to the extent otherwise included) any decrease in
long term provisions; and
(viii) the amount of any dividends actually paid in cash by
any member of the MGG Group to any person who is not
a member of the MGG Group and any cash dividends
declared by any member of the MGG Group to any person
which is not a member of the MGG Group,
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and no amount shall be included or excluded more than once save that
(except for the purposes of calculating Excess Cash Flow) any cash
payment made in 2001 or 2002 in respect of any Restructuring Expenses
which is otherwise deducted under paragraph (b) above shall be added
back.
"QUARTER DATE" means each of 31 March, 30 June, 30 September and 31
December.
"RELEVANT PERIOD" means:
(a) the period beginning on 1 January 2001 and ending on 30
September 2001; and
(b) each period of twelve months ending on the last day of each
Quarter Date falling after 30 September 2001.
"TOTAL DEBT" means, at any time, the aggregate of the Indebtedness for
Borrowed Money (without double counting) of the Newco 2 Group at that
time expressed in euros (and if any such Indebtedness for Borrowed Money
is not denominated in euros then the amount of such Indebtedness for
Borrowed Money shall be converted into euros using the same principles
as those used in establishing a euro denominated figure for operating
profit of the Newco 2 Group for the applicable period ending on the date
at which the Total Debt figure is being calculated, with the exception
that for Indebtedness for Borrowed Money covered under any currency
hedging arrangement entered into by the Newco 2 Group the exchange rate
to be used shall be the effective rate under that currency hedging
arrangement) excluding:
(a) any Indebtedness for Borrowed Money arising under any
permitted Intra-Group Loan;
(b) any Indebtedness for Borrowed Money owed by Newco 2 under any
loan from a Holding Company of Newco 2 to Newco 2;
(c) any Indebtedness for Borrowed Money to the extent that such
Indebtedness for Borrowed Money is supported by any Letter of
Credit or Bank Guarantee issued under this Agreement; and
(d) any Indebtedness for Borrowed Money to the extent that the
creditor of such Indebtedness for Borrowed Money has been (and
continues at that time to be) provided with first priority
Security over a deposit in a bank account securing such
Indebtedness for Borrowed Money,
but adding Uncovered Non-Indemnified Unconsolidated Debt at that time.
"TOTAL DEBT SERVICE" means, in respect of any period and without double
counting, the aggregate of:
(a) Net Cash Interest Payable for that period; and
(b) the aggregate of scheduled repayments and mandatory
prepayments of Total Debt falling due during that period (but
excluding:
(i) any amounts falling due under either Revolving
Facility other than any payments required to be made
in permanent reduction of either Revolving Facility;
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(ii) any prepayments required to be made pursuant to
paragraph (a) of Clause 9.5 (ASSET DISPOSALS)); and
(iii) any mandatory repayments of Existing Indebtedness
falling due as a result of any provisions contained
in the relevant agreement pursuant to which such
Existing Indebtedness was provided relating to the
change of control of any member of the Newco 2 Group
as a result of the MGG Acquisition or otherwise
triggered by the MGG Acquisition or the entering into
of the Finance Documents.
For the avoidance of doubt, "SCHEDULED REPAYMENTS" are repayments due
under the relevant agreement as reduced from time to time (in accordance
with the provisions of that agreement) as a consequence of any
prepayment.
"TOTAL SENIOR DEBT" means, at any time (without double counting), the
aggregate of the Indebtedness for Borrowed Money of the MGG Group at
such time expressed in euros (and if any such Indebtedness for Borrowed
Money is not denominated in euros then the amount of such Indebtedness
for Borrowed Money shall be converted into euros using the same
principles as those used in establishing a euro denominated figure for
operating profit of the Newco 2 Group for the applicable period ending
on the date at which the Total Senior Debt figure is being calculated,
with the exception that for Indebtedness for Borrowed Money covered
under any currency hedging arrangement entered into by the Newco 2 Group
the exchange rate to be used shall be the effective rate under that
currency hedging arrangement):
(a) excluding any Indebtedness for Borrowed Money arising under
any permitted Intra-Group Loan made between members of the MGG
Group;
(b) excluding any Indebtedness for Borrowed Money to the extent
that such Indebtedness for Borrowed Money is supported by any
Letter of Credit or Bank Guarantee issued under this
Agreement;
(c) excluding any Indebtedness for Borrowed Money to the extent
that the creditor of such Indebtedness for Borrowed Money has
been (and continues at that time to be) provided with first
priority Security over a deposit in a bank account securing
such Indebtedness for Borrowed Money;
(d) less (to the extent otherwise included) any Indebtedness for
Borrowed Money outstanding under the Mezzanine Facility
Agreement or the Direct Mezzanine Refinancing Facility at such
time;
(e) less (to the extent otherwise included) any Indebtedness for
Borrowed Money owing by MGG or, as the case may be, Debtco in
respect of any High Yield Proceeds Loan, any Exchange Notes
Loan and in respect of any Newco 2 Loan;
(f) less (to the extent otherwise included) any Indebtedness for
Borrowed Money (not falling within paragraphs (b) or (c)
above) which is subordinated to the Facilities on terms
acceptable to the Majority Lenders; and
(g) plus Uncovered Non-Indemnified Unconsolidated Debt at
that time.
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"UNCOVERED NON-INDEMNIFIED UNCONSOLIDATED DEBT" at any time means the
amount of Revolving Facility II which is not at such time utilised less
an amount (if any) certified in the then latest Compliance Certificate
by which Total Non-Indemnified Unconsolidated Debt has been permanently
reduced (by reason of the expiry of a guarantee or indemnity given by a
member of the MGG Group which is not to be renewed or as a result of the
disposal of the MGG Group's interest in a Joint Venture or
Unconsolidated Subsidiary of MGG or payment of a sum under such a
guarantee or indemnity by a member of the MGG Group or otherwise) other
than by reason of a payment in respect of any Non-Indemnified
Unconsolidated Debt from the proceeds of a Revolving Facility II Loan or
under a Letter of Credit or Bank Guarantee issued under Revolving
Facility II and which such reduction has not been used to enable a
Utilisation under Revolving Facility II to be used for general working
capital requirements of the MGG Group pursuant to the provisions to
paragraph (c) of Clause 3.1 (PURPOSE).
"WORKING CAPITAL" means at any time Current Assets less Current
Liabilities at that time.
22.2 FINANCIAL CONDITION
The Obligor's Agent shall ensure that:
(a) EBITDA TO NET CASH INTEREST PAYABLE: The ratio of EBITDA for
the Relevant Period ending on each Quarter Date specified in
column 1 below to Net Cash Interest Payable for each Relevant
Period ended on such Quarter Date shall not be less than the
ratio set out in column 2 below opposite such Quarter Date.
------------------------------- -----------------------------------
COLUMN 1 COLUMN 2
QUARTER DATE EBITDA: NET CASH INTEREST PAYABLE
------------------------------- -----------------------------------
31 December 2001 2.15:1.0
------------------------------- -----------------------------------
31 March 2002 2.15:1.0
------------------------------- -----------------------------------
30 June 2002 2.25:1.0
------------------------------- -----------------------------------
30 September 2002 2.35:1.0
------------------------------- -----------------------------------
31 December 2002 2.50:1.0
------------------------------- -----------------------------------
31 March 2003 2.60:1.0
------------------------------- -----------------------------------
30 June 2003 2.60:1.0
------------------------------- -----------------------------------
30 September 2003 2.70:1.0
------------------------------- -----------------------------------
31 December 2003 2.75:1.0
------------------------------- -----------------------------------
31 March 2004 2.85:1.0
------------------------------- -----------------------------------
30 June 2004 3.00:1.0
------------------------------- -----------------------------------
30 September 2004 3.05:1.0
------------------------------- -----------------------------------
31 December 2004 3.10:1.0
------------------------------- -----------------------------------
31 March 2005 3.25:1.0
------------------------------- -----------------------------------
30 June 2005 3.35:1.0
------------------------------- -----------------------------------
30 September 2005 3.50:1.0
------------------------------- -----------------------------------
31 December 2005 3.60:1.0
------------------------------- -----------------------------------
31 March 2006 and each
Quarter Date thereafter 3.75:1.0
------------------------------- -----------------------------------
(b) TOTAL SENIOR DEBT TO EBITDA: The ratio of Total Senior Debt on
each of the Quarter Dates specified in column 1 below to
EBITDA for the Relevant Period ending on such Quarter Date
shall not be more than the ratio set out in column 2 below
corresponding to that Quarter Date.
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------------------------------- -----------------------------------
COLUMN 1 COLUMN 2
QUARTER DATE TOTAL SENIOR DEBT : EBITDA
------------------------------- -----------------------------------
31 December 2001 4.00:1.0
------------------------------- -----------------------------------
31 March 2002 3.90:1.0
------------------------------- -----------------------------------
30 June 2002 3.80:1.0
------------------------------- -----------------------------------
30 September 2002 3.50:1.0
------------------------------- -----------------------------------
31 December 2002 3.00:1.0
------------------------------- -----------------------------------
31 March 2003 2.85:1.0
------------------------------- -----------------------------------
30 June 2003 2.75:1.0
------------------------------- -----------------------------------
30 September 2003 2.70:1.0
------------------------------- -----------------------------------
31 December 2003 2.55:1.0
------------------------------- -----------------------------------
31 March 2004 2.45:1.0
------------------------------- -----------------------------------
30 June 2004 2.30:1.0
------------------------------- -----------------------------------
30 September 2004 2.20:1.0
------------------------------- -----------------------------------
31 December 2004 2.10:1.0
------------------------------- -----------------------------------
31 March 2005 2.00:1.0
------------------------------- -----------------------------------
30 June 2005 1.90:1.0
------------------------------- -----------------------------------
30 September 2005 1.80:1.0
------------------------------- -----------------------------------
31 December 2005 1.70:1.0
------------------------------- -----------------------------------
31 March 2006 and each Quarter 1.50:1.0
Date thereafter
------------------------------- -----------------------------------
(c) CASH FLOW TO TOTAL DEBT SERVICE: The ratio of Operating Cash
Flow to Total Debt Service for each Relevant Period ended on
each Quarter Date specified in column 1 below shall not be
less than the ratio set out in column 2 below opposite such
Quarter Date.
------------------------------- ----------------------------------------
COLUMN 1 COLUMN 2
QUARTER DATE OPERATING CASH FLOW: TOTAL DEBT SERVICE
------------------------------- ----------------------------------------
30 June 2002 1.00:1.0
------------------------------- ----------------------------------------
30 September 2002 1.00:1.0
------------------------------- ----------------------------------------
31 December 2002 1.00:1.0
------------------------------- ----------------------------------------
31 March 2003 1.00:1.0
------------------------------- ----------------------------------------
30 June 2003 1.00:1.0
------------------------------- ----------------------------------------
30 September 2003 1.05:1.0
------------------------------- ----------------------------------------
31 December 2003 1.05:1.0
------------------------------- ----------------------------------------
31 March 2004 and each Quarter 1.10:1.0
Date thereafter
------------------------------- ----------------------------------------
(d) TOTAL DEBT TO EBITDA: The ratio of Total Debt on each of the
Quarter Dates specified in column 1 below to EBITDA for the
Relevant Period ending on such Quarter Date shall not be more
than the ratio set out in column 2 below corresponding to that
Quarter Date.
------------------------------- ---------------------------------
COLUMN 1 COLUMN 2
QUARTER DATE TOTAL DEBT: EBITDA
------------------------------- ---------------------------------
31 December 2001 5.25:1.0
------------------------------- ---------------------------------
31 March 2002 5.15:1.0
------------------------------- ---------------------------------
30 June 2002 5.00:1.0
------------------------------- ---------------------------------
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------------------------------- ---------------------------------
COLUMN 1 COLUMN 2
QUARTER DATE TOTAL DEBT: EBITDA
------------------------------- ---------------------------------
30 September 2002 4.70:1.0
------------------------------- ---------------------------------
31 December 2002 4.10:1.0
------------------------------- ---------------------------------
31 March 2003 3.90:1.0
------------------------------- ---------------------------------
30 June 2003 3.85:1.0
------------------------------- ---------------------------------
30 September 2003 3.75:1.0
------------------------------- ---------------------------------
31 December 2003 3.60:1.0
------------------------------- ---------------------------------
31 March 2004 3.50:1.0
------------------------------- ---------------------------------
30 June 2004 3.35:1.0
------------------------------- ---------------------------------
30 September 2004 3.25:1.0
------------------------------- ---------------------------------
31 December 2004 3.10:1.0
------------------------------- ---------------------------------
31 March 2005 3.00:1.0
------------------------------- ---------------------------------
30 June 2005 2.90:1.0
------------------------------- ---------------------------------
30 September 2005 2.80:1.0
------------------------------- ---------------------------------
31 December 2005 2.70:1.0
------------------------------- ---------------------------------
31 March 2006 and each Quarter 2.50:1.0
Date ending thereafter
------------------------------- ---------------------------------
22.3 CAPITAL EXPENDITURE
(a) The Obligor's Agent shall ensure that the Newco 2 Group (and,
to the extent that any such period occurs prior to the Closing
Date, the Newco 2 Group and the MGG Group combined) shall not
incur Capital Expenditure in any Financial Quarter specified
in Column 1 below in excess of the amount set out in Column 2
below as applicable for such Financial Quarter:
COLUMN 1 COLUMN 2
CALENDAR YEAR ENDING MAXIMUM CAPITAL
EXPENDITURE (EUROS)
31 December 2001 39,800,000
31 March 2002 54,200,000
30 June 2002 51,100,000
30 September 2002 49,600,000
31 December 2002 51,300,000
provided always that the Obligor's Agent shall ensure that the
Newco 2 Group (including, prior to the Closing Date, the MGG
Group) shall not incur Capital Expenditure in the calendar
year ending 31 December 2001 or the calendar year ending 31
December 2002 in excess of the amount specified in Column 2 of
paragraph (b) below applicable to such calendar year.
(b) The Obligor's Agent shall ensure that the Newco 2 Group shall
not incur Capital Expenditure in any calendar year specified
in Column 1 below in excess of the amount set out in Column 2
below as applicable for such calendar year:
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COLUMN 1 COLUMN 2
CALENDAR YEAR ENDING MAXIMUM CAPITAL
EXPENDITURE (EUROS)
31 December 2001 179,000,000
31 December 2002 179,000,000
31 December 2003 180,000,000
31 December 2004 187,600,000
31 December 2005 190,000,000
31 December 2006 200,000,000
31 December 2007 200,000,000
(c) Notwithstanding paragraphs (a) and (b) above:
(i) to the extent that in any Financial Quarter ending in
2001 or in any Financial Quarter ending in 2002 the
amount spent in making Capital Expenditure on assets
is less than the maximum expenditure limit for such
Financial Quarter, an amount equal to 100% of the
amount of such shortfall (the "RELEVANT FQ AMOUNT")
may be carried forward to the following Financial
Quarter in that calendar year only and added to the
maximum expenditure limit specified in Column 2 of
paragraph (a) above in respect of such following
Financial Quarter but provided that if such Relevant
FQ Amount is not spent within such following
Financial Quarter it shall cease to be available. For
the purposes of determining whether the Relevant FQ
Amount has been spent in such following Financial
Quarter, it will be presumed that such Relevant FQ
Amount is spent before all of the other Capital
Expenditure permitted by paragraph (a) above to be
spent in such following Financial Quarter has been
spent;
(ii) to the extent that in any calendar year the amount
spent in making Capital Expenditure on assets is less
than the maximum expenditure limit for such period,
an amount equal to 50% of the amount of such
shortfall (the "RELEVANT AMOUNT") may be carried
forward to the following calendar year only and added
to the maximum expenditure limit specified in Column
2 of paragraph (b) above in respect of such following
calendar year (and in respect of any Relevant Amount
carried forward from 2001 to 2002, such Relevant
Amount shall be added so that the maximum capital
expenditure permitted in each Financial Quarter in
2002 is increased pro rata) but provided further that
if such Relevant Amount is not spent within such
following calendar year it shall cease to be
available. For the purposes of determining whether
the Relevant Amount has been spent in such following
calendar year, it will be presumed that such Relevant
Amount is spent before all of the other Capital
Expenditure permitted by paragraph (b) above (or, in
the case of any Relevant Amount carried forward from
2001 to 2002, paragraph (a) above) to be spent in
such following calendar year has been spent; and
(iii) an amount of the Additional Basket may be added to
the maximum Capital Expenditure amount permitted in
respect of any calendar year commencing after 31
December 2000,
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PROVIDED THAT the amount of such permitted maximum Capital
Expenditure for any calendar year specified in Column 1 of
paragraph (b) above shall not in any event exceed 150% of the
maximum amount which would be permitted to be incurred without
any additional amounts being added to such maximum amount
under this paragraph (c).
22.4 FINANCIAL TESTING
The financial covenants set out in Clause 22.2 (FINANCIAL CONDITION) and
the requirements of Clause 22.3 (CAPITAL EXPENDITURE) shall be tested by
reference to each Compliance Certificate (and the accompanying financial
statements) and Auditor's Report delivered pursuant to Clause 21.2
(COMPLIANCE CERTIFICATES).
22.5 ADJUSTMENTS
Notwithstanding any other provision of this Agreement, for the purpose
of calculating the ratio of Total Senior Debt to EBITDA and the ratio of
Total Debt to EBITDA in relation to the Relevant Period ending 30
September 2001, EBITDA shall be an amount equal to EBITDA for the period
of 9 months ending on 30 September 2001 multiplied by four and divided
by three.
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) The Obligor's Agent and each Obligor shall promptly (and the
Obligor's Agent shall procure that Newco 2 shall 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 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, subject to the
Reservations, to ensure the legality, validity, enforceability
or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.
(b) Each Obligor shall (and the Obligor's Agent shall ensure that
each Material Company shall):
(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 in all material respects 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 Newco
2 Group as a whole; and
(iii) upon the Agent's written request supply the Agent
with copies of any such Authorisations.
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23.2 COMPLIANCE WITH LAWS
The Obligor's Agent and each Obligor shall (and the Obligor's Agent
shall procure that Newco 2 shall) comply in all respects with all laws
to which it may be subject, if failure so to comply would materially
impair its ability to perform its obligations under the Finance
Documents.
23.3 NEGATIVE PLEDGE
(a) No Obligor shall (and the Obligor's Agent shall ensure that no
Material Company will) create or permit to subsist any
Security over any of its assets.
(b) No Obligor shall (and the Obligor's Agent shall ensure that no
Material Company 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 other member of the Group
(other than, for the avoidance of doubt, any such
disposal and consequential lease between members 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.
(d) The Obligor's Agent shall procure that Newco 2 shall not
create or permit to subsist any Security over any of its
assets or any Quasi Security in respect of any of its assets
other than:
(i) under the Security Documents;
(ii) under any Permitted High Yield Security;
(iii) under any Permitted Exchange Notes Security; and
(iv) under any Permitted Security falling within
paragraphs (c)(i), (j) or (l) of the definition of
Permitted Security.
(e) No Obligor shall (and the Obligor's Agent shall ensure that no
member of the Group will) create or permit to subsist any
Permitted Security falling within paragraph (m) or (n) of the
definition of Permitted Security in Clause 1.1 (DEFINITIONS)
over any of its assets where such assets are specifically
secured under any Security Document.
23.4 LOANS AND GUARANTEES
No Obligor shall (and the Obligor's Agent shall ensure that no member of
the Newco 2 Group will) make any loans, grant any credit or give any
guarantee or indemnity (except as required
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by the Finance Documents) to or for the benefit of any person or
otherwise voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any other person other
than Permitted Loans and Guarantees.
23.5 FINANCIAL INDEBTEDNESS
(a) No Obligor shall (and the Obligor's Agent shall ensure that no
member of the Newco 2 Group will) incur, create or permit to
subsist or have outstanding any Financial Indebtedness or
enter into any agreement or arrangement whereby it is entitled
to incur, create or permit to subsist any Financial
Indebtedness other than, in either case, Permitted
Indebtedness.
(b) The Obligor's Agent shall ensure that (without double
counting) the aggregate of Total Debt (as defined in Clause 22
(FINANCIAL COVENANTS)) shall at no time exceed
EUR2,250,000,000 (or its equivalent in other currencies, using
the exchange rate quoted in the Financial Times as at the date
hereof).
23.6 ACQUISITIONS
Other than the Acquisition or Permitted Acquisitions no Obligor shall
(and the Obligor's Agent shall ensure that no member of the Group will):
(a) purchase, subscribe for or otherwise acquire any shares (or
other securities or any interest therein) in, or incorporate,
any other company or agree to do any of the foregoing; or
(b) purchase or otherwise acquire any assets (other than in the
ordinary course of business or pursuant to any Permitted
Capital Expenditure) or (without limitation to any of the
foregoing) acquire any business or interest therein or agree
to do so.
23.7 JOINT VENTURES AND NON WHOLLY-OWNED SUBSIDIARIES
(a) The Obligor's Agent shall ensure that the aggregate amount of:
(i) outstanding loans permitted pursuant to paragraphs
(b)(iii) and (d) of the definition of Permitted Loans
and Guarantees;
(ii) the aggregate consideration (both cash and non-cash)
paid for acquisitions permitted pursuant to paragraph
(e) of the definition of Permitted Acquisitions in
relation to acquisitions of any shares or investments
in a Non Wholly-Owned Subsidiary that is not an
Obligor;
(iii) the aggregate consideration (both cash and non-cash)
paid for acquisitions permitted pursuant to paragraph
(f) of the definition of Permitted Acquisitions;
(iv) outstanding guarantees and indemnities permitted
pursuant to paragraphs (i) of the definition of
Permitted Loans and Guarantees; and
(v) outstanding guarantees and indemnities from MGG or
Debtco or a wholly-owned Subsidiary of MGG or Debtco
to a Non Wholly-Owned Subsidiary that is not an
Obligor permitted pursuant to paragraph (j) of the
definition of Permitted Loans and Guarantees,
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shall not at any time (the "RELEVANT TIME") exceed
EUR100,000,000 (or its equivalent in other currencies).
(b) Save as provided in paragraph (c) below, the following shall
not count towards the permitted euro amounts specified in
paragraph (a) of this Clause:
(i) loans to Non Wholly-Owned Subsidiaries to the extent
that they are used to repay Existing Indebtedness or
guarantees of such Existing Indebtedness;
(ii) equity investments in Non Wholly-Owned Subsidiaries
or MGG Joint Ventures if as a consequence of making
such equity investments such entities become
wholly-owned Subsidiaries of MGG;
(iii) any Indemnified Unconsolidated Debt;
(iv) loans existing on the Closing Date to Non
Wholly-Owned Subsidiaries, MGG Joint Ventures and
Unconsolidated Subsidiaries;
(v) guarantees and indemnities existing on the Closing
Date in respect of indebtedness of Non Wholly-Owned
Subsidiaries, MGG Joint Ventures and Unconsolidated
Subsidiaries;
(vi) loans permitted pursuant to paragraph (g) of the
definition of Permitted Loans and Guarantees;
(vii) any loans to Non Wholly-Owned Subsidiaries, MGG Joint
Ventures and Unconsolidated Subsidiaries to the
extent they are supported by any Letter of Credit or
Bank Guarantee issued under Revolving Facility II;
and
(viii) any guarantee given by MGG guaranteeing indebtedness
owing by any borrower under a Treasury Borrower Loan
Agreement.
(c) Any equity investments of the type referred to in paragraph
(b)(ii) above shall, whilst the entities into which they are
contributed are not wholly-owned Subsidiaries, count towards
the relevant euro amount specified in paragraph (a) above
provided that:
(i) upon all of the shares of any such entity which are
held by members of the MGG Group being disposed of to
non-members of the MGG Group such equity investments
which counted towards such euro amount shall cease to
count towards such euro amount; and
(ii) (subject to paragraph (i) of this paragraph (c)) if
any such entity becomes a wholly-owned Subsidiary of
MGG, then at the election of the Obligor's Agent at
the time such entity becomes a wholly-owned
Subsidiary of MGG any such equity investments may
remain allocated against the relevant euro amount
specified in paragraph (a) above or be treated as
being an amount funded out of the Additional Basket
at that time or count towards the relevant euro
amount specified in paragraph (k) of the definition
of Permitted Acquisitions (in relation to the year in
which the relevant expenditure was made) or any
combination thereof, but unless such election is made
by the Obligor's Agent such equity
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investments shall be deemed to remain counting
towards the relevant euro amount specified in
paragraph (k) of the definition of Permitted
Acquisitions.
23.8 JOINT VENTURES
No Obligor shall, and the Obligor's Agent shall procure that no member
of the Group shall, enter into or acquire or subscribe (or agree to
enter into or acquire or subscribe) for any shares, stocks, securities
or other interest in or transfer of any assets to or lend to or
guarantee or give security for the obligations of any Joint Ventures,
Non Wholly-Owned Subsidiaries that are not Guarantors or Unconsolidated
Subsidiaries of Newco 2 save for Permitted Acquisitions or Permitted
Loans and Guarantees.
23.9 DIVIDENDS AND DISTRIBUTIONS
The Obligor's Agent shall ensure that no member of the MGG Group will
pay, make or declare any dividend, return on capital, repayment of
capital contributions or other distribution (whether in cash or in kind)
or make any distribution of assets or other payment whatsoever in
respect of share capital whether directly or indirectly, save for
Permitted Distributions.
23.10 SUBORDINATED DEBT
(a) The Obligor's Agent shall ensure that no member of the MGG
Group will pay any interest or return on principal or
repayment of principal or other distribution (in cash or in
kind) or make any distribution of assets or other payment
whatsoever in respect of any indebtedness:
(i) in respect of any High Yield Proceeds Loan, save as
permitted under the High Yield Proceeds Loan
Agreement relating thereto and the High Yield
Subordination Agreement relating thereto;
(ii) under the Mezzanine Facility Agreement or the Direct
Mezzanine Refinancing Facility, save as permitted
under the terms of the Intercreditor Deed applicable
thereto;
(iii) in respect of any Newco 2 Loan, save as permitted
under the Newco 2 Loan Agreement and the Newco 2
Subordination Agreement relating thereto and save as
any such payment is an MGG Permitted Distribution or
a Debtco Permitted Distribution (as the case may be);
(iv) in respect of any Exchange Notes Loan, save as
permitted under the Exchange Notes Loan Agreement
relating thereto and Exchange Notes Subordination
Agreement relating thereto.
(b) MGG (and, during the Debtco Structure Period, Debtco) shall
ensure that it diligently enforces its rights under any
Subordination Agreement.
23.11 DISPOSALS
No Obligor shall (and the Obligor's Agent 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 any asset
other than Permitted Disposals.
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23.12 MERGER
(a) No Obligor shall (and the Obligor's Agent shall ensure that no
other member of the Group will) enter into any amalgamation,
demerger, merger or corporate reconstruction unless the
Majority Lenders have given their prior written consent
thereto (such consent not to be unreasonably withheld) save
that:
(i) Hoechst Newco 3 may merge into the Company (with the
Company being the surviving entity) as expressly
contemplated in the Business Combination Agreement;
(ii) the Company or Newco 2 (or both) may be converted
from a GmbH (a limited liability company) or an AG (a
stock corporation) (respectively) to a GmbH & Co.
KGaA (a partnership limited by shares) or a KG (a
limited partnership) or a GmbH (a limited liability
company);
(iii) a member of the Group may merge with another member
of the Group pursuant to a solvent re-organisation
PROVIDED THAT (1) MGG may not merge with any of its
Holding Companies, (2) if MGG merges with any of its
Subsidiaries MGG shall be the surviving entity, (3)
the Agent is given 30 Business Days' notice by the
Obligor's Agent of any such merger and the Majority
Lenders do not object to such merger (on the basis
that they believe it would reasonably be expected to
be prejudicial to any Security granted pursuant to
the Security Documents) and (4) the surviving entity
of any such merger would be liable for the
obligations of the entity it has merged with.
(b) Paragraph (a) above is subject to the provisions of Clause
23.36 (LIMITATION ON THE LENDERS' CONTROL OVER GERMAN
OBLIGORS).
23.13 CHANGE OF BUSINESS
(a) The Obligor's Agent shall procure that no substantial change
is made to the general nature of the business of the MGG Group
from that carried on at the date of this Agreement.
(b) The Obligor's Agent shall procure that Newco 2 shall not carry
on any business, own any assets (other than (i) Newco 2's
shareholding in MGG or Debtco, (ii) rights under Intra-Group
Loans permitted pursuant to the terms of this Agreement and
(iii) any claims for rebates or indemnification with respect
to Taxes and (iv) cash at bank) and shall not incur any
liabilities of any nature whatsoever save for: (i) any
Security contemplated pursuant to the terms of this Agreement
or the Mezzanine Finance Documents or any Direct Mezzanine
Refinancing Facility; (ii) professional fees and
administration costs in the ordinary course of business; (iii)
any liabilities under the Finance Documents, Mezzanine Finance
Documents, any Direct Mezzanine Refinancing Facility or the
High Yield Documents and any Exchange Notes Documents; (iv)
any liabilities under Intra-Group Loans permitted pursuant to
the terms of this Agreement; (v) any liabilities incurred
pursuant to the Acquisition Documents, (vi) any liabilities
under the Newco 2 Receivable and under any other loans made to
Newco 2 from the Company and (vii) any liabilities in respect
of Taxes.
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(c) Neither any Treasury Borrower nor Debtco shall carry on any
business, own any assets (other than (i) Debtco's shareholding
in MGG and, (ii) rights under Intra-Group Loans permitted
pursuant to the terms of this Agreement and (iii) cash at
bank) or incur any liabilities of any nature whatsoever save
for: (i) any Security contemplated pursuant to the terms of
this Agreement or the Mezzanine Finance Documents or any
Direct Mezzanine Refinancing Facility; (ii) professional fees
and administration costs in the ordinary course of business;
(iii) any liabilities under the Finance Documents, Mezzanine
Finance Documents or any Direct Mezzanine Refinancing
Facility; (iv) any liabilities under Intra-Group Loans
permitted pursuant to the terms of this Agreement; and (v) in
the case of Debtco, any liabilities under any High Yield
Proceeds Loan Agreement or Newco 2 Loan Agreement or Exchange
Notes Loan Agreement to which it is party.
(d) The Obligor's Agent shall procure that the Company shall not
carry on any business, own any assets (other than (i) its
shareholding in Newco 2, (ii) its shareholding in any Holding
Operating Company and (should any Holding Operating Company
cease to be or fail to become a direct Subsidiary of the
Company) a shareholding in one other operating company if such
shareholding is reasonably considered by the Obligor's Agent
to be required for the purposes of German trade tax
consolidation, (iii) the receivable owed by Hoechst Newco 3 on
exercise of the Call Option (as defined in the Business
Combination Agreement), (iv) the Newco 2 Receivable, (v) its
rights under the Acquisition Documents and (vi) cash at bank
and (vii) its rights under any loan made to it or by it which
is not prohibited by the terms of this Agreement) or incur any
liabilities of any nature whatsoever save for: (i) any
liabilities in respect of Taxes; (ii) any liabilities incurred
pursuant to the Acquisition Documents; (iii) professional fees
and administration costs in the ordinary course of business;
(iv) any liabilities under the Finance Documents, Mezzanine
Finance Documents or any Direct Mezzanine Refinancing
Facility; (v) any liabilities under any loans made to it which
are not prohibited by the terms of this Agreement; and (vi)
any liabilities under subordination agreements subordinating
its claims against any of its Subsidiaries to the Refinancing
Notes.
(e) Paragraphs (a), (b), (c) and (d) above are subject to the
provisions of Clause 23.36 (LIMITATION ON THE LENDERS' CONTROL
OVER GERMAN OBLIGORS).
23.14 INSURANCE
(a) Each Obligor shall (and the Obligor's Agent shall ensure that
each member of the MGG Group will) maintain insurances on and
in relation to its business and assets with reputable
underwriters or insurance companies against those risks and to
the extent as is usual for companies carrying on the same or
substantially similar business in the country or countries in
which it owns or leases property or otherwise conducts its
business (including, without limitation, loss of earnings,
business interruption and directors and officers liability
cover where available on a cost-effective basis).
(b) Each Obligor shall (if so requested in writing) supply the
Agent with copies of all insurance policies or certificates of
insurance evidencing compliance with paragraph (a) above or
(in the absence of the same) such other evidence of the
existence of such policies as may be reasonably acceptable to
the Agent.
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(c) Each Obligor shall notify the Agent of any material changes to
the insurance cover it (and, in the case of the Obligor's
Agent, each member of the MGG Group) from time to time has in
place.
23.15 ENVIRONMENTAL COMPLIANCE
The Obligor's Agent shall (and the Obligor's Agent shall ensure that
each member of the MGG Group will) comply in all material respects with
all Environmental Law and obtain and maintain any Environmental Permits
and take all reasonable steps in anticipation of known or expected
future changes to or obligations under the same, in each case, where
failure to do so would reasonably be expected to have a Material Adverse
Effect.
23.16 ENVIRONMENTAL CLAIMS
The Obligor's Agent shall inform the Agent in writing as soon as
reasonably practicable upon becoming aware of the same:
(a) if any Environmental Claim has been commenced or (to the best
of the Obligor's Agent's knowledge and belief) is threatened
against any member of the Group; or
(b) of any facts or circumstances which will or are reasonably
likely to result in any Environmental Claim being commenced or
threatened against any member of the Group,
where the claim would reasonably be expected, if determined against that
member of the Group, to have a Material Adverse Effect.
23.17 TAXATION
(a) Each Obligor shall (and the Obligor's Agent shall ensure that
each Material Company will) duly and punctually pay and
discharge all material Taxes imposed upon it or its assets
within the time period allowed without incurring penalties
(save to the extent that (i) payment is being contested in
good faith, (ii) adequate reserves are being maintained for
those Taxes and (iii) where such payment can be lawfully
withheld).
(b) No Obligor shall (and the Obligor's Agent shall ensure that no
Material Company will) be materially overdue in the filing of
any tax returns.
(c) Each Obligor shall (and the Obligor's Agent shall ensure that
each 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 would reasonably be expected to have a
Material Adverse Effect.
(d) No Obligor shall (and the Obligor's Agent shall ensure that no
member of the Group will) enter into any arrangements in
relation to Taxes which may give rise to:
(i) either any Holding Company of MGG having a claim
against any member of the MGG Group, unless
subordinated in a manner confirmed in writing by the
Agent as being satisfactory; or
(ii) any member of the MGG Group being liable for any
obligation of any Holding Company of MGG,
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except that each member of the Group incorporated in Germany
may enter into an arrangement pursuant to which it forms a
consolidated group with the Company and/or Newco 2 and/or
Debtco for German trade tax and/or German VAT purposes only.
23.18 SECURITY
Each Obligor shall, at its own expense, take all such action and the
Obligor's Agent shall ensure that it and Newco 2 and any other member of
the Newco 2 Group shall, at its own expense, take all such action:
(a) as the Agent or the Security Trustee may require (acting
reasonably) for the purpose of perfecting or protecting the
Finance Parties' rights under and preserving the Security
intended to be created or evidenced by any of the Finance
Documents; and
(b) as the Agent or the Security Trustee may require following the
making of any declaration pursuant to Clause 24.15
(ACCELERATION) for facilitating the realisation of any such
Security or any part thereof.
23.19 PENSIONS
(a) The Obligor's Agent will, if requested by the Agent, deliver
to the Agent at such time as those reports are prepared in
order to comply with then current statutory or auditing
requirements (if any), actuarial reports in relation to the
pension schemes for the time being operated by members of the
Group.
(b) The Obligor's Agent shall (and shall procure that each member
of the Group will) ensure that all pension schemes applicable
to it are fully funded (where required by applicable law)
based on reasonable actuarial assumptions and are administered
and funded in accordance with applicable law where failure to
do so would reasonably be expected to have a Material Adverse
Effect.
23.20 ACCESS
The Obligor's Agent shall ensure that any one or more representatives,
agents and advisers of the Agent will, on reasonable grounds and with
reasonable prior notice (but not more often than once during each
financial year of Newco 2 unless the Agent reasonably believes that an
Event of Default has occurred), be allowed to have access to the assets,
books, records and premises of each member of the Group and to inspect
the same during normal business hours (at the expense of the Obligor's
Agent).
23.21 PRESERVATION OF ASSETS
Each Obligor shall (and the Obligor's Agent shall ensure that each
member of the Group will) maintain and preserve all of its assets that
are necessary in the conduct of the business of the MGG Group (taken as
a whole) as conducted at the date of this Agreement in good working
order and condition, ordinary wear and tear excepted and where failure
to do so would reasonably be expected to have a Material Adverse Effect.
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23.22 INTELLECTUAL PROPERTY
Each Obligor shall (and the Obligor's Agent shall ensure that each
member of the Group will), save where failure to do so would not
reasonably be expected to have a Material Adverse Effect:
(a) make such registrations and pay such fees and other amounts as
are necessary to keep those registered Intellectual Property
Rights of the Group 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;
(c) do all acts as are reasonably practicable (including, without
limitation, the institution of legal proceedings) to maintain,
protect and safeguard the Intellectual Property of the Group
as a whole; and
(d) not terminate or discontinue the use of any such Intellectual
Property save that licensing arrangements in relation to such
Intellectual Property may be entered into 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.
23.23 VENDOR WARRANTIES AND ACQUISITION CLOSING CONDITIONS
(a) The Obligor's Agent shall ensure that the Company and any
other relevant Obligor will diligently pursue all material
claims for breach of contract or warranty by, or
misrepresentation by, or indemnity or other claim against the
Vendor or any of the Vendor's Affiliates under or in
connection with any Acquisition Documents, unless the Agent
(acting on the instruction of the Majority Lenders) has
consented in writing to such claim not being made.
(b) If the Majority Lenders (through the Agent) notify the
Obligor's Agent that in their opinion one or more of the
Acquisition Closing Conditions has not been satisfied the
Obligor's Agent shall ensure that the Company shall promptly
exercise its rights under the Acquisition Documents in
relation to the non-satisfaction of such Acquisition Closing
Condition(s).
23.24 AMENDMENTS
Neither the Obligor's Agent nor any relevant Obligor shall (and the
Obligor's Agent shall ensure that the Company shall not) amend, vary,
novate, supplement or terminate any of the Acquisition Documents, the
Shareholders' Agreement, any of the Mezzanine Finance Documents, any
documents relating to any Direct Mezzanine Refinancing, any Exchange
Notes Documents, any Exchange Notes Loan Agreement any of the High Yield
Documents, any High Yield Proceeds Loan Agreement, any Newco 2 Loan
Agreement, any Subordination Agreement, the constitutional documents or
any other document delivered to the Agent pursuant to Clause 4
(CONDITIONS OF UTILISATION) or Clause 26 (CHANGES TO THE OBLIGORS) or
waive any right thereunder other than:
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(a) any amendment, variation or waiver which is of a minor or
technical nature; or
(b) any amendment, variation or waiver which could not reasonably
be expected to have an adverse effect on the rights of the
Finance Parties under the Finance Documents or be prejudicial
to the interests of the Finance Parties under the Finance
Documents; or
(c) (in the case of any of the Mezzanine Finance Documents or any
documents relating to any Direct Mezzanine Refinancing) any
amendment, variation, novation or supplement thereto which is
not expressly prohibited under the terms of the applicable
Intercreditor Deed;
(d) (in the case of the High Yield Documents) any amendment,
variation, novation, supplement of any such High Yield
Document or waiver of any right thereunder which is not
inconsistent with the definition of High Yield Notes in Clause
1.1 (DEFINITIONS); or
(e) in respect of the Mezzanine Finance Documents, the termination
thereof in circumstances where the Mezzanine Outstandings have
either:
(i) been fully refinanced by the proceeds of High Yield
Proceeds Loans or any Direct Mezzanine Refinancing;
or
(ii) been fully replaced by Exchange Notes;
(f) in the case of any High Yield Proceeds Loan Agreement, Newco 2
Loan Agreement or any relevant Subordination Agreement, any
amendment, variation, novation, supplement of any such
agreement which is required to ensure that the Debtco
Introduction Date or the Debtco Exit Date occurs or (in the
case of the High Yield Proceeds Loan Agreement only) any
change which is permitted to be made under the terms of the
High Yield Subordination Agreement;
(g) in the case of any Exchange Notes Loan Agreement, any change
which is permitted to be made under the terms of the Exchange
Notes Subordination Agreement;
(h) in the case of any Exchange Notes Documents, any amendment,
variation, novation or supplement of any such document or
waiver of any right thereunder which is not inconsistent with
the definition of Exchange Notes in Clause 1.1 (DEFINITIONS);
(i) as expressly permitted or required pursuant to any Finance
Document;
(j) as consented to in writing by the Majority Lenders, it being
noted that in the event of any request for the increase of
capital (Stammkapital) of any German Obligor which is
constituted in the form of a GmbH as a result of any such
capital increase the maximum amount that may be claimed
against such German Obligor under any guarantee or security
provided by such German Obligor may be reduced pursuant to
paragraph (f) of Clause 19.9 (LIMITATION ON GERMAN OBLIGOR
GUARANTEE) of this Agreement and corresponding provisions in
the relevant Security Documents to which such German Obligor
is a party.
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23.25 TRANSACTIONS WITH RELATED PARTIES
No Obligor shall (and the Obligor's Agent shall ensure that no member of
the MGG Group will) enter into any arrangement or contract with any of
its Related Parties other than where:
(a) both parties to the arrangement are members of the MGG Group;
(b) such arrangement or contract is entered into on an arm's
length basis in good faith and in the commercial interests of
the members of the MGG Group party thereto; or
(c) such arrangement or contract is expressly permitted under the
terms of the Finance Documents.
23.26 FEES AND COMMISSIONS
No Obligor shall (and the Obligor's Agent shall ensure that no member of
the Group will) pay any fees or commissions to any person other than:
(a) any fees payable on arm's length terms to third parties who
have rendered service or advice to such Group member required
by such Group member in the ordinary course of business;
(b) non-executive director fees payable to any non-executive
directors of any member of the Group; and
(c) as required under the Finance Documents, the Mezzanine Finance
Documents, any Direct Mezzanine Refinancing Facility, any
Exchange Notes Documents or the High Yield Documents; and
(d) any fees payable in connection with the Acquisition or the
Finance Documents or the Mezzanine Finance Documents or the
Direct Mezzanine Refinancing Facility or the High Yield
Documents or the Exchange Notes Documents.
23.27 TREASURY TRANSACTIONS
No Obligor shall (and the Obligor's Agent shall ensure that no member of
the Group will) enter into any Treasury Transaction which is not a
Permitted Treasury Transaction.
23.28 THE ACQUISITION
The Obligor's Agent shall (and shall ensure that each member of the
Group will):
(a) in relation to the Acquisition, comply in all material
respects with all material applicable laws and all material
requirements of relevant regulatory authorities;
(b) at the request of the Agent, provide the Agent with any
material information in its possession relating to the
Acquisition;
(c) use reasonable endeavours to ensure that no publicity
material, press releases or other public documents in relation
to the Acquisition (other than those required by law or
regulation) are published or released by or on behalf of it,
or by its advisers which refer to any of the Finance Parties,
the Finance Documents or the Facilities, unless such reference
and the context in which it appears have previously been
approved by the Agent (such approval not to be unreasonably
withheld or delayed); and
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(d) not withhold its consent, after the Closing Date, to any
reasonable request by the Agent or the Arrangers to publicise
the Facilities and the involvement of all or any of the
Finance Parties in the Facilities and the transactions
contemplated thereby.
23.29 HEDGING
The Obligor's Agent and the Borrowers shall procure that Borrowers
approved by the Agent shall, in accordance with the terms of the Hedging
Letter, enter into Hedging Agreements (satisfactory to the Agent (acting
reasonably)) which:
(a) satisfy the requirements of the Hedging Letter; and
(b) rank PARI PASSU with the claims of the Finance Parties under
the Finance Documents.
23.30 GUARANTOR GROUP AND SECURITY COVERAGE
(a) Subject to paragraph (d) of this Clause 23.30, the Obligor's
Agent shall ensure that as at the end of each calendar year
(beginning with the calendar year ended 31 December 2001):
(i) the aggregate (without double counting) of (1) the
EBITDA of each of the Guarantors (but ignoring losses
before interest and tax of any Guarantor) and (2) the
EBITDA of each Consolidated Subsidiary of MGG which
is not a Guarantor (but ignoring any losses before
interest and tax of that Consolidated Subsidiary) in
respect of which 95% or more of its voting and issued
share capital is pledged pursuant to a Security
Document (the Guarantors referred to in paragraph (1)
of this paragraph (a)(i) taken together with the
Subsidiaries referred to in paragraph (2) of this
paragraph (a)(i) being collectively referred to as
the "SECURITY PARTIES"); and
(ii) the aggregate gross assets (without double counting
and excluding assets which are not included on
consolidation) of the Security Parties,
shall equal or exceed (in the case of paragraph (a)(i) above)
75 per cent. of the consolidated EBITDA and (in the case of
paragraph (a)(ii) above) 60 per cent. of the consolidated
gross assets of the Newco 2 Group, each as determined by
reference to the most recent Compliance Certificate and
Auditor's Report delivered pursuant to Clause 21.2 (COMPLIANCE
CERTIFICATES) in connection with the financial statements
delivered pursuant to paragraph (a)(i) or (a)(iii) and (if
relevant) paragraph (d)(i) or (d)(iii) of Clause 21.1
(FINANCIAL STATEMENTS).
(b) Subject to paragraph (d) of this Clause 23.30, the Obligor's
Agent shall ensure that as at the end of each calendar year
(beginning with the calendar year ending 31 December 2001):
(i) the aggregate (without double counting) of the EBITDA
of each of the Guarantors (but ignoring losses before
interest and tax of any Guarantor); and
(ii) the aggregate gross assets (without double counting
and excluding assets which are not included on
consolidation) of the Guarantors,
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shall equal or exceed (in the case of paragraph (b)(i) above)
65 per cent. of the consolidated EBITDA and (in the case of
paragraph (b)(ii) above) 55 per cent. of the consolidated
gross assets of the Newco 2 Group, each as determined by
reference to the most recent Compliance Certificate and
Auditor's Report delivered pursuant to Clause 21.2 (COMPLIANCE
CERTIFICATES) in connection with the financial statements
delivered pursuant to paragraph (a)(i) or (a)(iii) and (if
relevant) paragraph (d)(i) or (d)(iii) of Clause 21.1
(FINANCIAL STATEMENTS).
(c) For these purposes, EBITDA in relation to the Newco 2 Group is
calculated as defined in Clause 22.2 (FINANCIAL DEFINITIONS)
and EBITDA of any Security Party shall be calculated on the
same principles as that definition but on an unconsolidated
basis.
(d) If a Compliance Certificate or Auditor's Report delivered
pursuant to Clause 21.2 (COMPLIANCE CERTIFICATES) in
connection with the financial statements delivered pursuant to
paragraph (a) (i) or (d) (i) and/or paragraph (a) (iii) or (d)
(iii) of Clause 21.1 (FINANCIAL STATEMENTS) shows that any of
the requirements of paragraphs (a) or (b) of this Clause 23.30
are not satisfied, then it shall not be treated as a breach of
this Clause 23.30 nor shall a Default occur under Clause 24.3
(OTHER OBLIGATIONS) in relation to such non satisfaction if on
or before the date falling 60 days after delivery of such
Compliance Certificate or Auditor's Report either the managing
director or two board members of Newco 2 provide a certificate
to the Agent (on behalf of the Finance Parties) (together with
any supporting documentation reasonably requested by the
Agent) certifying that the failure to satisfy the percentage
requirements of paragraphs (a) and (b) above was due to the
sale of member(s) of the MGG Group with negative EBITDA or the
following conditions are satisfied:
(i) additional member(s) of the MGG Group become
Additional Guarantor(s) in accordance with Clause
26.4 (ADDITIONAL GUARANTORS); and/or
(ii) additional Security Document(s) are entered into
creating pledge(s) over a Consolidated Subsidiary or
Consolidated Subsidiaries of MGG which are not
Guarantors in respect of which 95% or more (or, in
the case of ▇▇▇▇▇▇ Carburos S.A., 89% or more) of its
voting and issued share capital are pledged pursuant
to such Security Document(s) (and the Agent is
provided with legal opinions satisfactory to it
(acting reasonably) in relation to each such Security
Document from its legal counsel in relation to the
law of the jurisdiction of incorporation of the
pledgor and the law governing the Security Document)
(the Additional Guarantors referred to in paragraphs
(i) and the Consolidated Subsidiaries referred to in
paragraph (ii) of this paragraph (d) being
collectively referred to as the "TOP UP SECURITY
PARTIES"); and
(iii) any Prokurist of Newco 2 provides a certificate
addressed to the Agent (on behalf of itself and the
Finance Parties) confirming (1) the EBITDA of each of
the Top Up Security Parties (ignoring losses before
interest and tax) and (2) the aggregate gross assets
of each of the Top Up Security Parties in respect of
the applicable calendar year and (3) that if the Top
Up Security Parties had been
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taken into account as Security Parties or Guarantors
(as the case may be) for the purposes of Clause 23.30
(a) and (b) for the applicable calendar year then:
(A) the aggregate (without double counting) of
the EBITDA of each of the Security Parties
(but ignoring losses before interest and tax
of any Security Party) and the aggregate
gross assets (without double counting) of
the Security Parties as at the end of the
applicable calendar year equalled or
exceeded (as appropriate) 80% of the
consolidated EBITDA and 65% of the
consolidated gross assets of the Newco 2
Group; and
(B) the aggregate (without double counting) of
the EBITDA of each of the Guarantors (but
ignoring losses before interest and tax of
any Guarantor) and the aggregate gross
assets (without double counting) of the
Guarantors equalled or exceeded (as
appropriate) 70% of the consolidated EBTIDA
and 60% of the consolidated gross assets of
the Newco 2 Group; and
(iv) the auditors of Newco 2 provide a report addressed to
the Agent (on behalf of the Finance Parties)
confirming the calculations set out in the
certificate referred to in paragraph (iii) of this
paragraph (d).
(e) The Obligor's Agent shall not be required to meet any of the
above requirements of this Clause 23.30 to the extent that it
satisfies the Agent that it cannot meet such requirements by
reason of legal or regulatory impediment which are beyond its
or any member of the Newco 2 Group's control or the factors
referred to in paragraph 4(a) of Schedule 15 (SECURITY
PRINCIPLES). The Obligor's Agent shall use reasonable
endeavours to ensure that relevant members of the Newco 2
Group do all that is necessary in order to ensure that such
relevant members of the Newco 2 Group can become an Additional
Guarantor and/or grant a pledge over shares in a Consolidated
Subsidiary (as the case may be).
(f) Without prejudice to its obligations under paragraphs (a), (b)
and (d) above, the Obligor's Agent shall procure that each
person that is at any time a Guarantor under (and as defined
in) the Mezzanine Facility Agreement or a guarantor of any of
the Direct Mezzanine Refinancing is also a Guarantor under
this Agreement at that time.
23.31 ACCOUNTING REFERENCE DATE
The Obligor's Agent shall ensure that Newco 2 retains (and shall ensure
that each member of the Newco 2 Group will retain) 31 December as its
accounting reference date and shall not change the duration of any of
its financial years, save that:
(a) Newco 2 and its Subsidiaries incorporated in Germany may
change their accounting reference dates to the first Quarter
Date after the Closing Date PROVIDED THAT the Obligor's Agent
shall use all reasonable endeavours to ensure that after any
such change the accounting reference dates of Newco 2 and each
of its Subsidiaries incorporated in Germany are, as soon as
reasonably practicable, changed back to 31 December 2001; and
(b) Newco 2 and its Subsidiaries incorporated in Germany may
change their accounting reference dates to the first Quarter
Date following the completion of the transactions
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contemplated by the Business Combination Agreement relating to
the transfer of 66 2/3% of the shares of Newco 2 to Hoechst
Newco 3 and then the transfer of the shares of Hoechst Newco
3 to the Company, PROVIDED THAT the Obligor's Agent shall use
all reasonable endeavours to ensure that after any such change
the accounting reference dates of Newco 2 and each of its
Subsidiaries incorporated in Germany are, as soon as
reasonably practicable, changed back to 31 December 2002.
23.32 REVISED GROUP STRUCTURE
If the Obligor's Agent or an Obligor becomes aware of any inaccuracies
(as at the Closing Date) in the Group Structure Chart delivered to the
Agent pursuant to Clause 4 (CONDITIONS OF UTILISATION) it will deliver
to the Agent as soon as is reasonably practicable thereafter a revised
structure chart for the Group (covering the same categories of
information as the Group Structure Chart).
23.33 SYNDICATION
The Obligor's Agent shall provide reasonable assistance to the Arrangers
in the preparation of the Information Memorandum and the primary and
general syndication of the Facilities (including, without limitation, by
making senior management available for the purpose of making
presentations to, or meeting, potential lending institutions) and will
comply with all reasonable requests for information from potential
syndicate members prior to completion of syndication. The Obligor's
Agent and each Obligor agree to be bound by the terms and conditions of
the Syndication Letter.
23.34 FEDERAL RESERVE REGULATIONS
The Obligor's Agent shall procure that each Borrower which is a US Group
Member will use the Facilities without violating Regulations T, U and X.
23.35 COMPLIANCE WITH ERISA
The Obligor's Agent shall procure that each US Group Member and each
ERISA Affiliate (each a "RELEVANT COMPANY") shall not cause or permit to
occur (a) an event which would result in the imposition of Security
under Section 412 of the Code or Section 302 or 4068 of ERISA or (b) an
ERISA Event that would reasonably be expected to have a Material Adverse
Effect.
23.36 LIMITATION ON THE LENDERS' CONTROL OVER GERMAN OBLIGORS
(a) The provisions of Clause 23.12 (MERGER) and Clause 23.13
(CHANGE OF BUSINESS) (the "RELEVANT RESTRICTIVE UNDERTAKINGS")
shall only apply to each German Obligor in the following
manner:
(i) each German Obligor shall give the Agent no less than
twenty Business Days' prior written notice of the
intention of it to carry out any acts or take any
steps inconsistent with the Relevant Restrictive
Undertakings;
(ii) the Agent shall be entitled within ten Business Days
of receipt of such a notice from a German Obligor to
request that such German Obligor supply the Agent
with any relevant information in connection with the
proposed action or steps referred to in such notice;
and
(iii) the Agent shall, if it decides that the proposed
action or steps set out in such notice would
reasonably be expected to be materially prejudicial
to the interests
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of the Finance Parties under the Finance Documents,
notify the relevant German Obligor of such a decision
within twenty Business Days of its receipt of such a
notice.
(b) If:
(i) the Agent notifies a German Obligor that the proposed
action or steps set out in a notice delivered by such
German Obligor pursuant to paragraph (a) above would
reasonably be expected to be materially prejudicial
to the interests of the Finance Parties under the
Finance Documents; and
(ii) the relevant German Obligor nevertheless proceeds to
carry out such proposed action or steps,
the Agent shall be entitled to (and, if so instructed by the
Majority Lenders, shall) exercise all or any of its rights
under Clause 24.15 (ACCELERATION).
23.37 CONDITIONS SUBSEQUENT
(a) The Obligor's Agent shall (and shall procure that each Initial
Guarantor will) use its best efforts to obtain all releases
and perform all other acts required to discharge in full the
Security which secures any Financial Indebtedness which is to
be repaid as a condition precedent under paragraph 5(g) of
Part I of Schedule 2 (CONDITIONS PRECEDENT) on or before the
Closing Date, and in any event the Obligor's Agent shall
ensure that all such releases are obtained and shall perform
all such other acts within 30 days of the Closing Date.
(b) The Obligor's Agent shall use its best endeavours to procure
that the following reports from KPMG are provided as soon as
reasonably practicable after the Closing Date (together with
Reliance Letters relating thereto) in form and substance
satisfactory to the Arrangers (acting reasonably):
(i) a report discussing the Business Plan and its
underlying assumptions (the "PROJECTIONS REPORT");
and
(ii) a report discussing the results of the MGG Group in
the year 2000 (the "2000 OUTTURN REPORT").
(c) The Obligor's Agent shall procure that the Original Financial
Statements of MGG are delivered to the Agent as soon as
reasonably practicable and in any event within 10 days of the
Closing Date.
23.38 TOTAL DEBT RELIEF AMOUNT
The Obligor's Agent shall ensure that the aggregate of the amount of the
Term Disposal Facility which has been repaid and Relevant Debt Relief
Amount as at the Term Disposal Facility Repayment Date is equal to or
greater than EUR255,000,000 (or its equivalent in other currencies).
23.39 DEBTCO EXIT DATE
If for any reason, after the Debtco Introduction Date, no German thin
capitalisation would apply if the Debtco Exit Date were to occur, then
at the request of the Majority Lenders the Obligor's Agent shall use all
reasonable endeavours to ensure that the Debtco Exit Date occurs.
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23.40 PAYMENTS UNDER DEBTCO INTRA-GROUP LOANS
Notwithstanding any other provision of any Finance Document, Debtco and
MGG shall ensure that each payment in respect of principal under any
Intra-Group Loan to which Debtco is the lender and MGG is the borrower
is either immediately used to reduce the Outstandings or the Mezzanine
Outstandings (unless prohibited by the terms of the Intercreditor Deed)
or placed in a bank account in Germany of Debtco which is subject to a
Security Document.
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 unless:
(a) its failure to pay is caused by administrative or technical
error; and
(b) payment is made within three 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 or the Company or Newco 2 does not comply with any
provision of the Finance Documents (other than those referred
to in Clause 24.1 (NON-PAYMENT) and Clause 22 (FINANCIAL
COVENANTS)).
(b) No Event of Default under paragraph (a) above in relation to
Clause 23.1 (AUTHORISATION), Clause 23.2 (COMPLIANCE WITH
LAWS), Clause 23.14 (INSURANCE), Clause 23.15 (ENVIRONMENTAL
COMPLIANCE), Clause 23.16 (ENVIRONMENTAL CLAIMS), Clause 23.17
(TAXATION), Clause 23.18 (SECURITY), Clause 23.19 (PENSIONS),
23.20 (ACCESS), Clause 23.21 (PRESERVATION OF ASSETS), Clause
23.22 (INTELLECTUAL PROPERTY), Clause 23.23 (VENDOR WARRANTIES
AND ACQUISITION CLOSING CONDITIONS), Clause 23.28 (THE
Acquisition), Clause 23.32 (REVISED GROUP STRUCTURE), Clause
23.33 (SYNDICATION) or Clause 23.35 (COMPLIANCE WITH ERISA)
will occur if the failure to comply is capable of remedy and
is remedied within twenty one Business Days of the earlier to
occur of the date of the Agent giving notice to the Obligor's
Agent or the Obligor's Agent becoming aware of the failure to
comply.
24.4 MISREPRESENTATION
Any representation or written statement made or deemed to be made by an
Obligor or the Company or Newco 2 in the Finance Documents or any other
document delivered by or on behalf of any Obligor or the Company 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 unless (save in relation to the Closing Representations) the
underlying circumstances (if capable of remedy) are remedied within
twenty one Business Days of the earlier to occur of the date of the
Agent giving notice to the Obligor's Agent or the Obligor's Agent
becoming aware of such underlying circumstances.
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24.5 CROSS DEFAULT
(a) Any Financial Indebtedness of any Material Company is not paid
when due nor within any originally applicable grace period.
(b) Any Financial Indebtedness of any Material Company 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 Material
Company is cancelled or suspended by a creditor of such
Material Company as a result of an event of default (however
described).
(d) Any creditor of any Material Company becomes entitled to
declare any Financial Indebtedness of such Material Company
due and payable prior to its specified maturity as a result of
an event of default (however described).
(e) No Default will occur under this Clause 24.5 if:
(i) the aggregate amount of Financial Indebtedness or
commitment for Financial Indebtedness falling within
paragraphs (a) to (d) above is less than EUR10,000,000
(or its equivalent in any other currency or currencies);
or
(ii) such Financial Indebtedness is repaid in full within 10
days of the earlier to occur of the date of the Agent
giving notice to the Obligor's Agent of such event or
circumstance or the Obligor's Agent becoming aware of
such event or circumstance.
(f) For the purposes of this Clause 24.5, to the extent that any
Financial Indebtedness is supported by a Letter of Credit or
Bank Guarantee issued under this Agreement or the creditor of
any Financial Indebtedness has been provided with first
priority security over a deposit in a bank account securing
such Financial Indebtedness, then the amount of such Financial
Indebtedness which is supported by such Letter of Credit or
Bank Guarantee or security shall not count as Financial
Indebtedness for so long as such Letter of Credit or Bank
Guarantee or security remains in force.
24.6 INSOLVENCY
(a) Any Material Company (other than a German Group Member) is
unable or admits inability to pay its debts as they fall due
or suspends making payments on any of its debts.
(b) The value of the assets of any Material Company (other than a
German Group Member) is less than its liabilities (taking into
account contingent and prospective liabilities).
(c) The Company or any German Group Member who is a Material
Company ceases or suspends generally payment of its debts or
publicly announces an intention to do so (or is deemed for the
purposes of any law applicable to it to be) or is over
indebted (UBERSCHULDUNG) within the meaning of section 19 of
the German Insolvency Code or unable or deemed unable to pay
its debts as they fall due (ZAHLUNGSUNFAHIGKEIT or DROHENDE
ZAHLUNGSUNFAHIGKEIT).
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(d) Any event occurs or proceedings are taken with respect to the
Company or any Material Company which has a similar or
equivalent effect to any of the provisions set out in
paragraphs (a) to (c) above.
(e) The Company or any Material Company, 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.
(f) A moratorium is declared in respect of any indebtedness of the
Company or any Material 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 the Company or any Material Company other than a
solvent liquidation or reorganisation of any Material Company
(other than Newco 2) which is not an Obligor;
(b) a composition, assignment or arrangement with any creditor of
the Company or any Material Company;
(c) the appointment of a liquidator (other than in respect of a
solvent liquidation of a Material Company (other than Newco 2)
which is not an Obligor), receiver, administrator,
administrative receiver, compulsory manager or other similar
officer in respect of the Company or any Material Company or
any of its assets; or
(d) enforcement of any Security over any assets having a value
greater than EUR10,000,000 (or its equivalent in any other
currency or currencies) of any Material Company,
or any analogous procedure or step is taken in any jurisdiction.
(e) No Event of Default will occur under this Clause 24.7 if the
Majority Lenders (acting reasonably) are satisfied that the
Company or the relevant Material Company (as the case may be)
is contesting in good faith and by appropriate proceedings the
relevant corporate action, legal proceedings or other
procedure or step and that it is reasonably likely that such
action, proceedings or steps will be discharged within 60 days
of their commencement.
24.8 CREDITORS' PROCESS
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of a Material Company having an aggregate
value of EUR10,000,000 (or its equivalent in any other currency or
currencies) and is not discharged within 60 days.
24.9 TRANSACTION SECURITY
(a) Any Obligor, the Company or Newco 2 fails to perform or comply
with any of the material obligations assumed by it in the
Security Documents.
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(b) At any time any of the Transaction Security is or becomes
unlawful or (subject to the Reservations) is not, or ceases to
be, legal, valid, binding or enforceable or otherwise ceases
to be effective, in a manner and to an extent which the
Majority Lenders reasonably consider to be materially
prejudicial to the interests of the Finance Parties under the
Finance Documents.
(c) No Event of Default will occur under paragraph (a) of this
Clause 24.9 if the failure is capable of remedy and it is
remedied within 21 Business Days of the earlier of the date
the Agent gives notice to the Obligor's Agent or the Obligor's
Agent becoming aware of the failure to comply.
24.10 OTHER INDEBTEDNESS
Any event of default (howsoever described) occurs under the Mezzanine
Facility Agreement or any High Yield Notes or any Direct Mezzanine
Refinancing or any Exchange Notes.
24.11 SUBORDINATION AGREEMENTS
Any party to any Intercreditor Deed or any Subordination Agreement or
any Newco 2 Loan Agreement or any High Yield Proceeds Loan Agreement or
any Exchange Notes Loan Agreement (other than any Finance Party) fails
to comply with its obligations under any such agreement in a manner
which is reasonably likely to be materially prejudicial to the interests
of any Finance Party under the Finance Documents.
24.12 UNLAWFULNESS
It is or becomes unlawful for an Obligor to perform any of its
obligations under the Finance Documents in circumstances or to an extent
which the Majority Lenders reasonably consider to be material
prejudicial to the interests of any Finance Party under the Finance
Documents.
24.13 REPUDIATION
An Obligor repudiates a Finance Document or any of the Transaction
Security or evidences an intention to repudiate a Finance Document or
any of the Transaction Security.
24.14 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which would reasonably be expected to
have a Material Adverse Effect.
24.15 ACCELERATION
Subject to Clause 24.16 (CLOSING PERIOD) and 24.17 (CLEAN-UP PERIOD) on
and at any time after the occurrence of an Event of Default which is
continuing, or otherwise in accordance with Clause 23.36 (LIMITATION ON
THE LENDERS' CONTROL OVER GERMAN OBLIGORS), the Agent may, and shall if
so directed by the Majority Lenders, by notice to the Obligor's Agent:
(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 Agent on the instructions of the Majority Lenders;
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(d) exercise, or direct the Security Trustee to exercise, all or
any of its or, as the case may be, the Security Trustee's
rights, remedies, powers or discretions under any of the
Finance Documents; and/or
(e) require the Borrowers to:
(i) procure that the liabilities of each of the Lenders
and the Fronting Banks under each Letter of Credit
and Bank Guarantee are promptly reduced to zero; or
(ii) provide Cash Collateral for each Letter of Credit and
Bank Guarantee in an amount specified by the Agent
and in the currency of that Letter of Credit or, as
the case may be, Bank Guarantee.
24.16 CLOSING PERIOD
During the Closing Period none of the Finance Parties shall be entitled
to take any action under Clause 24.15 (ACCELERATION) or rescind,
terminate or cancel this Agreement or the Facilities unless:
(i) a Closing Event of Default has occurred which is
continuing; and/or
(ii) the Acquisition Closing Conditions have not been
satisfied or have been waived (either partially or
entirely) by the Company or MGG (unless
(notwithstanding the Acquisition Closing Conditions
not having been so satisfied without being partially
or entirely waived by the Company or MGG (except in
accordance with Clause 23.24 (AMENDMENTS))) the
Company is obliged pursuant to the terms of the
Business Combination Agreement to consummate the MGG
Acquisition on the Closing Date), and/or
(iii) any of the Closing Representations made or deemed to
be made by the Obligor's Agent and each Obligor are
not true in all material respects,
PROVIDED THAT immediately upon the expiry of the Closing
Period (subject to Clause 24.17 (CLEAN-UP PERIOD)) all such
rights, remedies and entitlements which would have been
available to the Finance Parties but for this Clause 24.16
shall be available to the Finance Parties notwithstanding that
they may not have been used or available for use during the
Closing Period.
24.17 CLEAN-UP PERIOD
Until the Clean-Up Date, the Events of Default set out in Clause 24.3
(OTHER OBLIGATIONS) (save in so far as it relates to Clause 23.37
(CONDITIONS SUBSEQUENT)), Clause 24.4 (MISREPRESENTATION) and Clause
24.5 (CROSS DEFAULT) shall not apply to any member of the MGG Group if
reasonable steps are being taken by the Obligor's Agent and (as
appropriate) any member of the MGG Group to cure any such Event of
Default, unless such Event of Default:
(i) is reasonably likely to have a material adverse
effect on the ability of any Obligor to perform its
payment obligations under the Finance Documents; or
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(ii) has been procured, or approved, by any Holding
Company of MGG or any of the Obligors (other than by
way of any such company entering into any of the
Transaction Documents).
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SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS
25.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 25, a Lender (the "EXISTING LENDER") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another person (the "NEW LENDER"). The Agent shall maintain a
book-entry registration transfer system (the "REGISTER") for the
purposes of all assignments and transfers made pursuant to this Clause
25.
25.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of neither the Obligor's Agent nor any other
Obligor is required for an assignment or transfer by a Lender.
(b) The consent of the Bookrunners is required for an assignment
or transfer by a Lender at any time prior to the last
Syndication Date, save that no such consent is required for an
assignment or transfer by a Lender to any of its Affiliates.
(c) If a Lender wishes to enter into an assignment or transfer in
relation to a Revolving Facility at a time when any Letters of
Credit or Bank Guarantees are outstanding under that Revolving
Facility, the consent of the relevant Fronting Banks in
respect of such Letters of Credit or Bank Guarantees will be
required (such consent not to be unreasonably withheld or
delayed).
(d) An assignment will only be effective on the Agent recording
the assignment on the Register and receipt by the Agent of
written confirmation from the New Lender (in form and
substance satisfactory to the Agent) that the New Lender will
assume the same obligations to the other Finance Parties as it
would have been under if it was an Original Lender.
(e) A transfer will only be effective if the procedure set out in
Clause 25.5 (PROCEDURE FOR TRANSFER) is complied with.
(f) A Lender may transfer or assign all or any part of its share
of a Facility without transferring or assigning any part of
its share of any other Facility.
(g) If:
(i) a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or changes
its Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor
would be obliged to make a payment to the New Lender
or Lender acting through its new Facility Office
under Clause 14 (TAX GROSS-UP AND INDEMNITIES) or
Clause 15 (INCREASED COSTS),
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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 PROVIDED THAT
this clause 25.2(g) shall not affect any obligation of an
Obligor to make a payment under Clause 14 (TAX GROSS-UP AND
INDEMNITIES) that results from a deduction of tax imposed on
the Agent by section 118E(3) of the Income and Corporation
Taxes ▇▇▇ ▇▇▇▇.
(h) If a Lender transfers or assigns part but not all of its share
of the Facilities to a person other than one of its Affiliates
then such transfer or assignment must be in a minimum amount
of EUR1,000,000 of its Commitment (or, if such partial
transfer or assignment relates to a Dollar Facility or the
Term Disposal Facility in a minimum amount of $1,000,000).
(i) If the Lender to whom the assignment or transfer is being made
is not party to the Intercreditor Deed as a Senior Lender then
(if it does not become a Lender pursuant to a Transfer
Certificate) it shall duly execute and deliver to the Security
Trustee and the Agent a deed of accession in the form required
under the Intercreditor Deed so as to become a Senior Lender
under the Intercreditor Deed.
25.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of EUR750
PROVIDED THAT no such fee shall be paid in relation to any assignment or
transfer:
(a) by a Lender to one of its Affiliates; or
(b) made pursuant to primary or general syndication of the
Facilities.
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 or the
Company or Newco 2 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
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entities in connection with its participation in
this Agreement and has not relied exclusively on any
information provided to it by the Existing Lender in
connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of
the creditworthiness of each Obligor and its related
entities whilst any amount is or may be outstanding
under the Finance Documents or any Commitment is in
force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under
this Clause 25; or
(ii) support any losses directly or indirectly incurred by
the New Lender by reason of the non-performance by
any Obligor, the Company or Newco 2 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 OR TRANSFER) a transfer is effected in
accordance with paragraph (b) below when the Agent executes an
otherwise duly completed Transfer Certificate delivered to it
by the Existing Lender and the New Lender and the transfer is
recorded by the Agent on the Register. The Agent shall, as
soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply
with the terms of this Agreement and delivered in accordance
with the terms of this Agreement, execute that Transfer
Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its
rights and obligations under the Finance Documents
each of the Obligors (which term shall include for
the purposes of this Clause 25.5 the Company and
Newco 2) and the Existing Lender shall be released
from further obligations towards one another under
the Finance Documents and their respective rights
against one another shall be cancelled (being the
"DISCHARGED RIGHTS AND OBLIGATIONS");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor
and the New Lender have assumed and/or acquired the
same in place of that Obligor and the Existing
Lender;
(iii) the Agent, the Security Trustee, the Arrangers, the
New Lender, the other Lenders and any relevant
Fronting Banks shall acquire the same rights and
assume the same obligations between themselves as
they would have acquired and assumed had the New
Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of
the transfer and to that extent the Agent, the
Security Trustee, the Arrangers, any relevant
Fronting
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Banks and the Existing Lender shall each be released
from further obligations to each other under this
Agreement; and
(iv) the New Lender shall become a Party as a "Lender".
25.6 SUB-PARTICIPATIONS BY LENDERS
Any Lender may, without the consent of the Obligor's Agent or any
Obligor, enter into with any person:
(a) sub-participation agreements relating to this Agreement;
and/or
(b) any other transactions under which payments are to be made by
reference to this Agreement or any Obligor.
25.7 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or
proposes to assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or proposes to
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference
to, this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate if, in relation to paragraphs
(a) and (b) above, the person to whom the information is to be given has
entered into a Confidentiality Undertaking.
26. CHANGES TO THE OBLIGORS
26.1 ASSIGNMENT AND TRANSFERS BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents other than as provided in Clause
26.7 (TRANSFERS ON DEBTCO INTRODUCTION DATE) or Clause 26.8 (TRANSFER ON
DEBTCO EXIT DATE).
26.2 ADDITIONAL BORROWERS
(a) The Obligor's Agent may request that MGG and/or any
Consolidated Subsidiary of MGG 99% or more of whose voting and
issued share capital is owned directly or indirectly by MGG
becomes an Additional Borrower. That Consolidated Subsidiary
or MGG (as the case may be) shall become an Additional
Borrower if:
(i) (other than in the case of any Initial Borrower) all
the Lenders approve the addition of that Consolidated
Subsidiary or, if that Consolidated Subsidiary is
incorporated in Luxembourg, The Netherlands, Germany
or in any state of the United States of America, the
Majority Lenders approve the addition of that
Consolidated Subsidiary as an Additional Borrower
(such approval not to be unreasonably withheld it
being noted that as at the date hereof there are
German
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thin capitalisation concerns which would mean that
while MGG is a Borrower no other German Member
should be a Borrower);
(ii) the Obligor's Agent delivers to the Agent a duly
completed and executed Accession Letter;
(iii) the Obligor's Agent confirms that no Default (or,
during the Closing Period, no Closing Event of
Default) is continuing or would occur as a result of
that Consolidated Subsidiary or MGG (as the case may
be) becoming an Additional Borrower; and
(iv) the Agent has received all of the documents and other
evidence listed in Part II of Schedule 2 (CONDITIONS
PRECEDENT) in relation to that Additional Borrower,
each in form and substance satisfactory to the Agent.
(b) The Obligor's Agent may request that Debtco becomes an
Additional Borrower. Debtco shall become an Additional
Borrower if:
(i) the Obligor's Agent delivers to the Agent a duly
completed and executed Accession Letter;
(ii) the Obligor's Agent confirms that no Default is
continuing or would occur as a result of Debtco
becoming an Additional Borrower;
(iii) the Agent has received all of the documents and other
evidence listed in Part III of Schedule 2 (CONDITIONS
PRECEDENT) in relation to Debtco, each in form and
substance satisfactory to the Agent; and
(iv) no High Yield Notes have been issued and twelve
Months have elapsed since the date of this Agreement.
(c) The Agent shall notify the Obligor's Agent 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 II (or Part III, in the case of the
accession of Debtco) of Schedule 2 (CONDITIONS PRECEDENT).
26.3 RESIGNATION OF A BORROWER
(a) The Obligor's Agent may request that a Borrower (other than
MGG) ceases to be a Borrower by delivering to the Agent a
Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the
Obligor's Agent and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the
acceptance of the Resignation Letter (and the
Obligor's Agent has confirmed this is the case); and
(ii) that Borrower is under no actual or contingent
obligations (in respect of principal or interest in
relation to any Loan made to it or in respect of any
actual or contingent obligations relating to a Bank
Guarantee or Letter of Credit issued at its request)
as a Borrower under any Finance Documents,
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whereupon that company shall cease to be a Borrower and shall
have no further rights or obligations under the Finance
Documents.
26.4 ADDITIONAL GUARANTORS
(a) The Obligor's Agent may request that any member of the MGG
Group (or, with effect from the Debtco Introduction Date,
Debtco) becomes an Additional Guarantor. That member of the
MGG Group or Debtco, as the case may be, shall become an
Additional Guarantor if:
(i) the Obligor's Agent delivers to the Agent a duly
completed and executed Accession Letter or, in the
case of ▇▇▇▇▇▇ Austria GmbH, the duly executed
Austrian Guarantee; and
(ii) the Agent has received all of the documents and other
evidence listed in Part II (or, in the case of
Debtco, Part III) of Schedule 2 (CONDITIONS
PRECEDENT) in relation to that Additional Guarantor
(other than, in the case of ▇▇▇▇▇▇ Austria GmbH, an
Accession Letter), each in form and substance
satisfactory to the Agent.
(b) The Agent shall notify the Obligor's Agent 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 II (or, in the case of Debtco, Part
III) of Schedule 2 (CONDITIONS PRECEDENT).
26.5 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the relevant
Consolidated Subsidiary of MGG or Debtco (as the case may be) that the
Repeating Representations (or, during the Closing Period, the Closing
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.
26.6 RESIGNATION OF A GUARANTOR
(a) The Obligor's Agent may request that a Guarantor (other than
MGG) ceases to be a Guarantor by delivering to the Agent a
Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the
Obligor's Agent and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the
acceptance of the Resignation Letter (and the
Obligor's Agent has confirmed this is the case);
(ii) all the Lenders have consented to the request of the
Obligor's Agent PROVIDED THAT if the shares in such
Guarantor have been (or are about to be) sold
pursuant to a Permitted Disposal, then all the
Lenders shall be deemed to consent to such request.
26.7 TRANSFERS ON DEBTCO INTRODUCTION DATE
(a) All of the Parties agree that if there have been any
Utilisations made prior to the Debtco Introduction Date at the
request of any Borrower whose Relevant Jurisdiction is Germany
(a "RELEVANT GERMAN BORROWER") then on the Debtco Introduction
Date
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the rights and obligations of the Relevant German Borrowers as
Borrowers shall be automatically transferred to Debtco so that
on such date:
(i) each of the Relevant German Borrowers (other than
Debtco) who have had Loans made to them or who have
had Letters of Credit or Bank Guarantees issued at
their request prior to the Debtco Introduction Date
shall be released from their obligations as Borrowers
(but not as Guarantors) under the Finance Documents
and their rights as Borrowers shall be cancelled
(being the "GERMAN BORROWERS DISCHARGED RIGHTS AND
OBLIGATIONS");
(ii) Debtco shall assume obligations and acquire rights
under the Finance Documents which differ from the
German Borrowers Discharged Rights and Obligations
only insofar as Debtco has assumed and/or acquired
the same in place of the Relevant German Borrowers.
(b) Each Relevant German Borrower and Debtco agree that Debtco
shall be deemed to have made loans to each Relevant German
Borrower on the Debtco Introduction Date immediately after the
transfers referred to in paragraph (a) above in an amount
equal to the sum of:
(i) the aggregate Outstandings of the Loans made to that
Relevant German Borrower immediately prior to the
transfer referred to in paragraph (a) above; and
(ii) the aggregate interest, commissions and fees accrued
but not paid in relation to the Utilisations referred
to in paragraph (i) of this paragraph (b) in relation
to that Relevant German Borrower and in relation to
any Letters of Credit and Bank Guarantees issued at
that Relevant German Borrower's request.
(c) Each Relevant German Borrower agrees to indemnify Debtco on
demand in respect of any amount demanded by any Finance Party
from Debtco pursuant to the provisions of Clause 8 (BORROWER'S
LIABILITIES IN RELATION TO LETTERS OF CREDIT AND BANK
GUARANTEES) in connection with a Letter of Credit or Bank
Guarantee requested by that Relevant German Borrower.
26.8 TRANSFERS ON DEBTCO EXIT DATE
(a) All of the Parties agree that if on the Debtco Exit Date there
are any Utilisations in respect of which Debtco is the
Borrower, then on the Debtco Exit Date the rights and
obligations of Debtco as a Borrower in respect of such
Utilisations shall be automatically transferred to the Initial
German Borrowers in the amounts specified in the Debtco Exit
Transfer Certificate (and if any Term Facility Loan is
transferred in parts to different Initial German Borrowers
then such Loan shall be divided into a number of loans equal
to the number of Borrowers to whom it is being transferred
PROVIDED THAT the provisions of Clause 4.4 (MAXIMUM NUMBER OF
LOANS, LETTERS OF CREDIT OR BANK GUARANTEES) and Clause 5.3
(CURRENCY AND AMOUNT) are complied with) so that on the Debtco
Exit Date:
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(i) Debtco shall be released from its obligations as a
Borrower under the Finance Documents and its rights
as a Borrower shall be cancelled (being the "DEBTCO
DISCHARGED RIGHTS AND OBLIGATIONS");
(ii) each Initial German Borrower shall assume obligations
and acquire rights under the Finance Documents in
relation to each Utilisation or part of each
Utilisation identified as being transferred to it in
the Debtco Exit Transfer Certificate which differ
from the Debtco Discharged Rights and Obligations in
respect of each such Utilisation or, as the case may
be, each such part of each Utilisation only insofar
as such Initial German Borrower has assumed the same
in place of Debtco.
26.9 GERMAN SECURITY AND DEBTCO INTRODUCTION DATE
Waiving section 418 of the German Civil Code, the Parties agree that any
Security created by any Relevant German Borrower prior to the Debtco
Introduction Date shall not be affected by any transfer or assumption of
the obligations secured by that Security to or by Debtco.
26.10 COMPANY CEASES TO BE PARTY ON MGG ACCESSION
The Parties agree that the Company shall cease to have any obligations
hereunder on the first date upon which the following conditions have
been satisfied: (1) MGG is a Borrower and Guarantor hereunder and (2)
the certificate referred to in Clause 26.11 (MGG ACCESSION) has been
delivered to the Agent. For the avoidance of any doubt, any
representation made or deemed made by the Company pursuant to Clause 20
(REPRESENTATIONS) shall, if the circumstances described in Clause 24.4
(MISREPRESENTATION) are satisfied, be capable of constituting an Event
of Default under Clause 24.4 (MISREPRESENTATION) after the Company has
ceased to be a Party and the breach by the Company of any of its
obligations expressed to be assumed by it prior to the date the Company
has ceased to be a Party shall be capable of constituting an Event of
Default under Clause 24.1 (NON-PAYMENT) or Clause 24.3 (OTHER
OBLIGATIONS). Any obligation owed by the Company hereunder immediately
prior to MGG becoming a Party shall be assumed by MGG upon MGG becoming
a Party.
26.11 MGG ACCESSION
Notwithstanding and superceding any other provision in any Finance
Document, MGG shall have no rights and no obligations under this
Agreement or any other Finance Document until it has become a Guarantor
and Borrower hereunder and in addition has delivered a certificate to
the Agent confirming that the MGG Acquisition has completed in
accordance with the terms of the Acquisition Documents. If such a
certificate has not been delivered (whether in original or by fax) by
11.59 p.m. on 2 May 2001, any Security granted by MGG to any Finance
Party under any Security Document shall be released, and treated for the
purposes of this Agreement as if it had never been given and any fees
actually paid under Clause 13 or any other payments actually made to the
Finance Parties by MGG under this Agreement or similar payments by MGG
under any of the other Finance Documents shall be promptly repaid to
MGG.
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SECTION 10
THE FINANCE PARTIES
27. ROLE OF THE AGENT AND THE ARRANGERS AND THE OBLIGOR'S AGENT
27.1 APPOINTMENT OF THE AGENT
(a) Each of the Arrangers, the Lenders and the Fronting Banks
appoints the Agent to act as its agent under and in connection
with the Finance Documents.
(b) Each of the Arrangers, the Lenders and the Fronting Banks
authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent
under or in connection with the Finance Documents together
with any other incidental rights, powers, authorities and
discretions.
27.2 DUTIES OF THE AGENT
(a) The Agent shall promptly forward to a Party the original or a
copy of any document which is delivered to the Agent for that
Party by any other Party.
(b) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify
the Lenders and, where appropriate, the Fronting Banks.
(c) The Agent shall promptly notify the Lenders and, where
appropriate, the Fronting Banks of any Default arising under
Clause 24.1 (NON-PAYMENT).
(d) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
27.3 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, the Arrangers
have no obligations of any kind to any other Party under or in
connection with any Finance Document.
27.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent, an Arranger
or a Fronting Bank as a trustee or fiduciary of any other
person.
(b) Neither the Agent, an Arranger nor any Fronting Bank shall be
bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account.
27.5 BUSINESS WITH THE GROUP
The Agent, the Arrangers and the Fronting Banks may accept deposits
from, lend money to and generally engage in any kind of banking or other
business (including, without limitation, providing advice) with any
member of the Group.
27.6 RIGHTS AND DISCRETIONS OF THE AGENT
(a) The Agent may rely on:
(i) any representation, notice or document believed by it
to be genuine, correct and appropriately authorised;
and
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(ii) any statement made by a director, authorised
signatory or employee of any person regarding any
matters which may reasonably be assumed to be within
his knowledge or within his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual
knowledge of a Default arising under Clause 24.1
(NON-PAYMENT));
(ii) any right, power, authority or discretion vested in
any Party or the Majority Lenders has not been
exercised;
(iii) any notice or request made by the Obligor's Agent
(other than a Utilisation Request or Selection
Notice) is made on behalf of and with the consent and
knowledge of all the Obligors; and
(iv) any Utilisation Request or Selection Notice made by
the Obligor's Agent on behalf of any Borrower is made
on behalf of and with the consent and knowledge of
that Borrower.
(c) The Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other
experts.
(d) The Agent may act in relation to the Finance Documents through
its personnel and agents.
27.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document,
the Agent shall (a) 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 Agent)
and (b) 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 Arrangers.
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or,
if appropriate, the Lenders) the Agent may act (or refrain
from taking action) as it considers to be in the best interest
of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal
or arbitration proceedings relating to any Finance Document.
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27.8 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor any Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness
of any information (whether oral or written) supplied by the
Agent, any Arranger, an Obligor or any other person given in
or in connection with any Finance Document or any 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, the Agent will not be
liable for any action taken by it under or in connection with
any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it
might have against the Agent or in respect of any act or
omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or
agent of the Agent may rely on this Clause. Any third party
referred to in this paragraph (b) may enjoy the benefit of and
enforce the terms of this paragraph in accordance with the
provisions of the Contracts (Rights of Third Parties) ▇▇▇
▇▇▇▇.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the
Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system
used by the Agent for that purpose.
27.10 LENDERS' INDEMNITY TO THE AGENT
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the Agent's
gross negligence or wilful misconduct) in acting as Agent under the
Finance Documents (unless the Agent has been reimbursed by an Obligor or
the Company pursuant to a Finance Document). For the purpose of
determining all or any part of the Total Commitments for the purpose of
this Clause 27.10 at any time, the amount in dollars of all Term B
Dollar Facility Commitments and all Term C Dollar Facility Commitments
and all Term Disposal Facility Commitments shall be calculated in euro
at the Agent's Spot Rate of Exchange on the date of this Agreement.
27.11 RESIGNATION OF THE AGENT
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in the United Kingdom or in Germany as
successor by giving notice to the Lenders and the Obligor's
Agent.
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(b) Alternatively the Agent may resign by giving notice to the
Lenders and the Obligor's Agent, in which case the Majority
Lenders (after consultation with the Obligor's Agent) may
appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent
in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Agent (after consultation
with the Obligor's Agent) may appoint a successor Agent
(acting through an office in the United Kingdom or Germany).
(d) The retiring Agent shall, at its own cost, make available to
the successor Agent such documents and records and provide
such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as Agent under
the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 27. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original
Party.
(g) After consultation with the Obligor's Agent, the Majority
Lenders may, by notice to the Agent, require it to resign in
accordance with paragraph (b) above. In this event, the Agent
shall resign in accordance with paragraph (b) above.
27.12 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions
or departments.
(b) If information is received by another division or department
of the Agent, it may be treated as confidential to that
division or department and the Agent shall not be deemed to
have notice of it.
(c) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent nor any Arranger 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
(a) The Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility
Office unless it has received not less than five Business Days
prior notice from that Lender to the contrary in accordance
with the terms of this Agreement.
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(b) Each Lender shall supply the Agent with any information
required by the Agent in order to calculate the Mandatory Cost
in accordance with Schedule 4 (MANDATORY COST FORMULAE).
27.14 CREDIT APPRAISAL BY THE LENDERS AND THE 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 Agent and the
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, 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,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document; and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent,
any Party or by any other person under or in connection with
any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
under or in connection with any Finance Document.
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 Agent shall (in
consultation with the Obligor's Agent) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
27.16 OBLIGOR'S AGENT
Each Obligor irrevocably authorises the Obligor's Agent to act on its
behalf as its agent in relation to the Finance Documents and irrevocably
authorises:
(a) the Obligor's Agent 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) on its behalf under the Finance Documents
without further reference to or the consent of such Obligor;
and
(b) each Finance Party to give any notice, demand or other
communication to be given to or served on such Obligor
pursuant to the Finance Documents to the Obligor's Agent on
its behalf;
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and in each such case such Obligor will be bound thereby as though such
Obligor itself had supplied such information, given such notice and
instructions or received any such notice, demand or other communication.
27.17 RELIANCE, PRIORITY AND ENGAGEMENT LETTERS
Each Finance Party confirms that each of the Arrangers and the Agent and
the Security Trustee has authority to accept on its behalf the terms of
any Reliance Letter, Priority Letter or engagement letters relating to
the Reports or any reports or letters provided by accountants in
connection with the Finance Documents or the transactions contemplated
therein and to bind it in respect of such Reports, reports or letters
and to sign such letters on its behalf and further confirms that it
accepts the terms and qualifications set out in such letters.
28. THE LENDERS AND THE FRONTING BANKS
28.1 LENDERS' INDEMNITY
If any Borrower fails to comply with its obligations under Clause 8.2
(BORROWERS' INDEMNITY TO FRONTING BANKS) the Agent shall:
(a) in respect of a Letter of Credit, make demand on each Lender
for its share of that L/C Amount and, subject to Clause 28.2
(DIRECT PARTICIPATION)), each Lender shall indemnify each
Fronting Bank for that Lender's L/C Proportion of each L/C
Amount; and
(b) in respect of a Bank Guarantee, make demand on each Lender for
its share of that Guarantee Amount and, subject to Clause 28.2
(DIRECT PARTICIPATION)), each Lender shall indemnify each
Fronting Bank for that Lender's Guarantee Proportion of each
Guarantee Amount.
28.2 DIRECT PARTICIPATION
(a) If any Lender is not permitted (by its constitutional
documents or any applicable law) to comply with Clause 28.1
(LENDERS' INDEMNITY) then that Lender will not be obliged to
comply with Clause 28.1 (LENDERS' INDEMNITY) and shall instead
be deemed to have taken:
(i) in respect of a Letter of Credit, on the date such
Letter of Credit is issued (or if later, on the date
that L/C Proportion is transferred or assigned to such
Lender in accordance with the terms of this Agreement),
an undivided interest and participation in that Letter
of Credit in an amount equal to that Lender's L/C
Proportion of that Letter of Credit; and
(ii) in respect of a Bank Guarantee, on the date such Bank
Guarantee is issued (or if later, on the date that
Guarantee Proportion is transferred or assigned to such
Lender in accordance with the terms of this Agreement),
an undivided interest and participation in that Bank
Guarantee in an amount equal to that Lender's Guarantee
Proportion of that Bank Guarantee.
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(b) On receipt of demand by the Agent in accordance with Clause
28.1 (LENDERS' INDEMNITY), each such Lender shall pay to the
Agent (for the account of the Fronting Bank):
(i) in respect of a Letter of Credit, its L/C Proportion
of any L/C Amount; or
(ii) in respect of a Bank Guarantee, its Guarantee
Proportion of any Guarantee Amount.
28.3 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Lender in this Clause 28 nor the rights,
powers and remedies conferred upon any Fronting Bank by this Agreement
or by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation
of the relevant Fronting Bank, any Borrower or any other
person or any change in its status, function, control or
ownership;
(b) any of the obligations of the relevant Fronting Bank, any
Borrower or any other person under this Agreement, under a
Letter of Credit, under a Bank Guarantee or under any other
security taken in respect of its obligations under this
Agreement or under a Letter of Credit or Bank Guarantee being
or becoming illegal, invalid, unenforceable or ineffective in
any respect;
(c) time or other indulgence being granted or agreed to be granted
to the relevant Fronting Bank, the relevant Borrower or any
other person in respect of its obligations under this
Agreement, under a Letter of Credit, under a Bank Guarantee or
under any other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the relevant Fronting Bank, the relevant
Borrower or any other person under this Agreement, under a
Letter of Credit, under a Bank Guarantee or under any other
security; 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 Lender in this Agreement contained or
any of the rights, powers or remedies conferred upon any
Fronting Bank by this Agreement or by law.
The obligations of each Lender in this Agreement contained shall be in
addition to and independent of every other security which any Fronting
Bank may at any time hold in respect of any Letter of Credit or Bank
Guarantee.
28.4 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Lender and a Fronting Bank shall
be conditional upon no security or payment to any Fronting Bank by a
Lender or any other person on behalf of a Lender being avoided or
reduced by virtue of any laws relating to bankruptcy, insolvency,
liquidation or similar laws of general application and, if any such
security or payment is so avoided or reduced, such Fronting Bank shall
be entitled to recover the value or amount of
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such security or payment from such Lender subsequently as if such
settlement or discharge had not occurred.
28.5 EXERCISE OF RIGHTS
No Fronting Bank shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of any Lender by this
Agreement or by law:
(a) to take any action or obtain judgment in any court against any
Obligor;
(b) to make or file any claim or proof in a winding-up or
dissolution of any Obligor; or
(c) to enforce or seek to enforce any other security taken in
respect of any of the obligations of the Obligors under this
Agreement.
28.6 BENEFICIARY A LENDER
Where the beneficiary of any Letter of Credit or Bank Guarantee (the
"BENEFICIARY") is also a Lender (the "INDEMNIFYING BANK") then the
Beneficiary in its capacity as such shall be treated as a separate
entity from such Indemnifying Bank for all purposes of the Finance
Documents.
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 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 Business Days,
notify details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is
in excess of the amount the Recovering Lender would have been
paid had the receipt or recovery been received or made by the
Agent and distributed in accordance with Clause 31 (PAYMENT
MECHANICS), without taking account of any Tax which would be
imposed on the Agent in relation to the receipt, recovery or
distribution; and
(c) the Recovering Lender shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "SHARING
PAYMENT") equal to such receipt or recovery less any amount
which the Agent determines may be retained by the Recovering
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Lender as its share of any payment to be made, in accordance
with Clause 31.5 (PARTIAL PAYMENTS).
30.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Lender) in accordance with Clause 31.5 (PARTIAL
PAYMENTS).
30.3 RECOVERING LENDER'S RIGHTS
(a) On a distribution by the Agent under Clause 30.2
(REDISTRIBUTION OF PAYMENTS), the Recovering Lender will be
subrogated to the rights of the Finance Parties which have
shared in the redistribution.
(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 which 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 Agent, pay to the Agent for account
of that Recovering Lender an amount equal to its share of the
Sharing Payment (together with such 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 of subrogation 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 Lender had an opportunity to participate in
those legal or arbitration proceedings but did not do
so as soon as reasonably practicable having received
notice or did not take separate legal or arbitration
proceedings.
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▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. PAYMENT MECHANICS
31.1 PAYMENTS TO THE AGENT
(a) On each date on which an Obligor or a Lender is required to
make a payment under a Finance Document, that Obligor or
Lender shall make the same available to the Agent (unless a
contrary indication appears in a Finance Document) for value
on the due date at the time and in such funds specified by the
Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal
financial centre of the country of that currency (or, in
relation to euro, in a principal financial centre in a
Participating Member State or London) with such bank as the
Agent specifies.
31.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 31.3 (DISTRIBUTIONS TO AN
OBLIGOR) and Clause 31.4 (CLAWBACK) be made available by the Agent as
soon as practicable after receipt to the Party entitled to receive
payment in accordance with this Agreement (in the case of a Lender, for
the account of its Facility Office), to such account as that Party may
notify to the Agent by not less than five Business Days' notice with a
bank in the principal financial centre of the country of that currency
(or, in relation to euro, in the principal financial centre of a
Participating Member State or London).
31.3 DISTRIBUTIONS TO AN OBLIGOR
The 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 Agent under the Finance
Documents for another Party, the Agent is not obliged to pay
that sum to that other Party (or to enter into or perform any
related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to
be the case that the Agent had not actually received that
amount, then the Party to whom that amount (or the proceeds of
any related exchange contract) was paid by the Agent shall on
demand refund the same to the Agent together with interest on
that amount from the date of payment to the date of receipt by
the Agent, calculated by the Agent to reflect its cost of
funds.
31.5 PARTIAL PAYMENTS
(a) If the Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Agent shall apply
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that payment towards the obligations of that Obligor under
the Finance Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Agent under the
Finance Documents;
(ii) SECONDLY, in or towards payment of any demand made by
a Fronting Bank in respect of a payment made or to be
made by it under a Letter of Credit or a Bank
Guarantee due but unpaid;
(iii) THIRDLY, in or towards payment pro rata of any
accrued interest, commission or Fronting Bank fees
due but unpaid under this Agreement;
(iv) FOURTHLY, in or towards payment pro rata of any
Outstandings due but unpaid under this Agreement; and
(v) FIFTHLY, in or towards payment pro rata of any other
sum due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary
the order set out in paragraphs (a)(ii) to (v) above.
(c) Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.
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.
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, 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 a Letter of Credit or a Bank
Guarantee (including any Cash Collateral in respect of a
Letter of Credit or a Bank Guarantee) shall be made in the
currency in which that Letter of Credit or, as the case may
be, Bank Guarantee is denominated.
(d) Each payment of interest shall be made in the currency in
which the sum in respect of which the interest is payable was
denominated when that interest accrued.
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(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
euro shall be paid in that other currency.
31.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency
or currency unit are at the same time recognised by the
central bank of any country as the lawful currency of that
country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the
currency of that country shall be translated into, or
paid in, the currency or currency unit of that country
designated by the Agent (after consultation with the
Obligor's Agent); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other, rounded
up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this
Agreement will, to the extent the Agent (acting reasonably and
after consultation with the Obligor's Agent) specifies to be
necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank
Market and otherwise to reflect the change in currency.
32. SET-OFF
After an Event of Default has occurred and for so long as it is
continuing a Finance Party may set off any matured obligation due from
an Obligor or the Obligor's Agent 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 or the Obligor's
Agent (as the case may be), 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. If a Finance Party does exercise its right of
set-off pursuant to this Clause 32 it shall give written notice (through
the Agent) of such action to the Obligor's Agent or the relevant Obligor
(as the case may be) as soon as is reasonably practicable thereafter.
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, letter or telex.
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33.2 ADDRESSES
The address, fax number and telex number (and the department or officer,
if any, for whose attention the communication is to be made) of each
Party for any communication or document to be made or delivered under or
in connection with the Finance Documents is:
(a) in the case of the Company, that identified with its name
below;
(b) in the case of each Lender, each Fronting Bank or any Obligor,
that notified in writing to the Agent on or prior to the date
on which it becomes a Party; and
(c) in the case of the Agent or the Security Trustee, that
identified with its name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify to
the other Parties, if a change is made by the Agent) by not less than
five Business Days' notice.
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 Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address; or
(iii) if by way of telex, when despatched, but only if, at the
time of transmission, the correct answerback appears at
the start and at the end of the sender's copy of the
notice;
and, if a particular department or officer is specified as
part of its address details provided under Clause 33.2
(ADDRESSES), if addressed to that department or officer.
(b) Any communication or document to be made or delivered to the
Agent or the Security Trustee will be effective only when
actually received by the Agent or, as the case may be, the
Security Trustee and then only if it is expressly marked for
the attention of the department or officer identified with the
Agent's or, as the case may be, the Security Trustee's
signature below (or any substitute department or officer as
the Agent or the Security Trustee shall specify for this
purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent.
(d) Any communication or document made or delivered to the
Obligor's Agent 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 AND TELEX NUMBER
Promptly upon receipt of notification of an address, fax number and
telex number or change of address, fax number or telex number pursuant
to Clause 33.2 (ADDRESSES) or changing its own address, fax number or
telex number, the Agent shall notify the other Parties.
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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 required by the Agent,
accompanied by a certified English translation and,
in this case, the English translation will prevail
unless the document is a constitutional, statutory or
other official document.
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 a Fronting Bank as to the
amount paid out by that Fronting Bank in respect of any Letter of Credit
or Bank Guarantee 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) and Clause 37.5 (AMENDMENT
TO CORRECT MANIFEST ERROR) any term of the Finance Documents
may be amended or waived only with the
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consent of the Majority Lenders and the Obligors and any such
amendment or waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause 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) an extension to the date of payment of any amount
under the Finance Documents;
(iii) a reduction in the Margin, the L/C Commission Rate,
the Guarantee Commission Rate or the amount of any
payment of principal, interest, fees or commission
payable;
(iv) an increase in Commitment;
(v) a change to the Borrowers or Guarantors other than in
accordance with Clause 26 (CHANGES TO THE OBLIGORS);
(vi) any provision which expressly requires the consent of
all the Lenders; or
(vii) Clause 2.2 (LENDERS' AND FRONTING BANKS' RIGHTS AND
OBLIGATIONS), Clause 25 (CHANGES TO THE LENDERS) or
this Clause 37,
shall not be made without the prior consent of all the
Lenders.
(b) An amendment or waiver which relates to the rights or
obligations of the Agent, the Security Trustee or any Arranger
may not be effected without the consent of the Agent, the
Security Trustee or, as the case may be, that Arranger.
37.3 AMENDMENTS BY SECURITY TRUSTEE
Unless the provisions of any Finance Document expressly provide
otherwise, the Security Trustee may, if authorised by the Majority
Lenders, amend the terms of, waive any of the requirements of, or grant
consents under, any of the Security Documents, any such amendment,
waiver or consent being binding on all the parties to this Agreement
PROVIDED THAT:
(a) the prior consent of all of the Lenders is required to
authorise any amendment of any Security Document which would
affect the nature or the scope of the Transaction Security or
the manner in which proceeds of enforcement are distributed;
and
(b) no waiver or amendment may impose any new or additional
obligations on any person without the consent of that person.
37.4 AMENDMENTS BY OBLIGOR'S AGENT
The Obligor's Agent (acting on behalf of each of the Obligors) may agree
any amendment to or modification of the provisions of any of the Finance
Documents or any schedule thereto, or
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grant any waiver or consent in relation thereto and the Obligors
will be bound by any such amendment or modification.
37.5 AMENDMENT TO CORRECT MANIFEST ERROR
The Agent may agree with the Obligor's Agent (acting on behalf of each
of the Obligors) any amendment to or the modification of the provisions
of any of the Finance Documents or any schedule thereto, which is
necessary to correct a manifest error and the Obligors will be bound by
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.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
39. GOVERNING LAW
This Agreement is governed by English law.
40. ENFORCEMENT
40.1 JURISDICTION OF ENGLISH COURTS
(a) The courts of England have exclusive jurisdiction to settle
any dispute arising out of or in connection with this
Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a "DISPUTE").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 40.1 is for the benefit of the Finance Parties
only. As a result, no Finance Party shall be prevented from
taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions.
40.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any
relevant law, the Company and each Obligor (other than an Obligor
incorporated in
England and Wales):
(a) irrevocably appoints ▇▇▇▇▇▇ UK Limited as its agent for
service of process in relation to any proceedings before the
English courts in connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the Company
or (as the case may be) the relevant Obligor of the process
will not invalidate the proceedings concerned.
If the appointment of ▇▇▇▇▇▇ UK Limited by any Obligor ceases to be
effective, the relevant Obligor shall immediately appoint another
person in England to accept service of process on its behalf in England
in connection with any Finance Document. If an Obligor fails to do so
(and such failure continues for a period of not less than fourteen
days), the Agent shall be entitled to appoint such a person by notice
to such Obligor.
41. WAIVER OF JURY TRIAL
Each of the Finance Parties irrevocably waives trial by jury in any
action or proceeding with respect to any Finance Document.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
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SCHEDULE 1
THE CLOSING PARTIES
PART I
THE INITIAL OBLIGORS
---------------------------------------------------------- -------------------------------------------------------
NAME OF INITIAL BORROWER JURISDICTION OF INCORPORATION AND REGISTRATION NUMBER
(OR EQUIVALENT, IF ANY)
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ registered in the
HANDELSREGISTER (commercial register) of the
AMTSGERICHT (local court) of Frankfurt am Main, under
HRB7812
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ Griesheim Industries, Inc. U.S.A., 0815454, State of Delaware
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ Finance S.A. Luxembourg
---------------------------------------------------------- -------------------------------------------------------
---------------------------------------------------------- -------------------------------------------------------
NAME OF INITIAL GUARANTOR JURISDICTION OF INCORPORATION AND REGISTRATION NUMBER
(OR EQUIVALENT, IF ANY)
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ registered
with the AMTSGERICHT (local court) of
Frankfurt am Main in the HANDELSREGISTER
(commercial register) under HRB7812
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ Griesheim Industries, Inc. U.S.A., 0815454, State of Delaware
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ Finance S.A. Luxembourg
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ UK Limited England, 232592
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ Griesheim Industriegase GmbH Germany, Leipzig, HRB1854 registered in
the HANDELSREGISTER (commercial register)
of the AMTSGERICHT (local court) of
Leipzig, under HRB1854
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ registered in the
HANDELSREGISTER (commercial register)
of the AMTSGERICHT (local court) of
Krefeld under HRB5807
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ registered in the
HANDELSREGISTER (commercial register) of the
AMTSGERICHT (local court) of Frankfurt am Main under
HRB 48431
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ France S.A. France, 300 560 588
---------------------------------------------------------- -------------------------------------------------------
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---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ Nederland B.V. The Netherlands, seat (statutaire zetel) in Moerdijk
and registered number 20069636
---------------------------------------------------------- -------------------------------------------------------
MG Generon, Inc. U.S.A., 2574 231, State of Delaware
---------------------------------------------------------- -------------------------------------------------------
GVP, Inc. U.S.A., 2638386, State of Delaware
---------------------------------------------------------- -------------------------------------------------------
▇▇▇▇▇▇ Austria GmbH Austria, FN 111741a
---------------------------------------------------------- -------------------------------------------------------
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PART II
THE ORIGINAL LENDERS
--------------------- ------------------- ------------------- ------------------- ------------------- -------------------
NAME OF ORIGINAL TERM DISPOSAL TERM A FACILITY TERM B EURO TERM B DOLLAR TERM C EURO
LENDER FACILITY COMMITMENT FACILITY FACILITY FACILITY
COMMITMENT (EUR) COMMITMENT COMMITMENT COMMITMENT
($) (EUR) ($) (EUR)
--------------------- ------------------- ------------------- ------------------- ------------------- -------------------
▇▇▇▇▇▇▇ Sachs 60,335,219.23 107,262,611.96 45,586,610.08 41,027,949.07 45,586,610.08
Credit Partners,
L.P.
--------------------- ------------------- ------------------- ------------------- ------------------- -------------------
Bayerische Hypo- 60,335,219.23 107,262,611.96 45,586,610.08 41,027,949.07 45,586,610.08
und Vereinsbank AG
--------------------- ------------------- ------------------- ------------------- ------------------- -------------------
The Chase Manhattan 60,335,219.23 107,262,611.96 45,586,610.08 41,027,949.07 45,586,610.08
Bank
--------------------- ------------------- ------------------- ------------------- ------------------- -------------------
The Royal Bank of 43,994,342.32 78,212,164.13 33,240,169.76 29,916,152.78 33,240,169.76
Scotland plc
--------------------- ------------------- ------------------- ------------------- ------------------- -------------------
Total 225,000,000 400,000,000 170,000,000 153,000,000 170,000,000
--------------------- ------------------- ------------------- ------------------- ------------------- -------------------
---------------------------------------- ------------------- -------------------
NAME OF ORIGINAL TERM C DOLLAR REVOLVING REVOLVING
LENDER FACILITY FACILITY I FACILITY II
COMMITMENT COMMITMENT COMMITMENT
($) (EUR) (EUR)
---------------------------------------- ------------------- -------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ 43,441,357.84 69,720,697.77 13,407,826.49
Credit Partners,
L.P.
---------------------------------------- ------------------- -------------------
Bayerische Hypo- 43,441,357.84 69,720,697.77 13,407,826.49
und Vereinsbank AG
---------------------------------------- ------------------- -------------------
The Chase Manhattan 43,441,357.84 69,720,697.77 13,407,826.49
Bank
---------------------------------------- ------------------- -------------------
The Royal Bank of 31,675,926.47 50,837,906.68 9,776,520.52
Scotland plc
---------------------------------------- ------------------- -------------------
Total 162,000,000 260,000,000 50,000,000
---------------------------------------- ------------------- -------------------
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SCHEDULE 2
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. CORPORATE DOCUMENTS
(a) A copy of the constitutional documents of the Company and
Newco 2 in the form required by the Agent together with a copy
of the resolutions of the shareholders of the Company and/or
Newco 2 adopting such changes to the constitutive documents of
the Company and/or Newco 2 as the Agent shall have reasonably
required.
(b) A copy of a resolution of the board of directors (or the
equivalent thereof) of each of the Company and Newco 2:
(i) approving the terms of, and the transactions
contemplated by, the Transaction Documents to which
it is a party and resolving that it execute the
Transaction Documents to which it is a party;
(ii) authorising a specified person or persons to execute
the Transaction 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) Where the Lenders' relevant counsel deems such to be either
necessary or desirable either in place of or in addition to
the resolution referred to in paragraph (b) above, a
certificate or extract from a public commercial registry or
other evidence setting out the names and signatures of the
persons authorised to sign, on behalf of each of the Company
and Newco 2, each Transaction Document to which such company
is or is to be a party and any documents to be delivered by
such company pursuant to any of the Transaction Documents.
(e) Where the Lenders' relevant counsel deems such to be either
necessary or desirable for the Company and Newco 2, either a
copy of a resolution signed by all the holders of the issued
shares in such company or a resolution of the supervisory
board, work council or equivalent supervisory body of such
company, approving the terms of, and the transactions
contemplated by, the Finance Documents to which that company
is a party.
(f) The constitutive documents of MGG in the form required by the
Agent.
(g) Any resolutions of the shareholders of MGG adopting such
changes to the constitutive documents of MGG as the Agent
shall have reasonably required to,
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among other things, remove any restriction on any transfer
of shares or partnership interests (or equivalent) in MGG
pursuant to any enforcement of the Security Documents
creating security over such shares.
(h) The Group Structure Chart.
(i) A certificate of an authorised signatory of each of the
Company and Newco 2 certifying that each copy document
relating to it specified in this paragraph 1 (CORPORATE
DOCUMENTS) of Part 1 of Schedule 2 is correct, complete and in
full force and effect as at a date no earlier than the date of
this Agreement.
2. ACCOUNTS AND REPORTS
(a) The Business Plan (together with a list of the operating and
market assumptions made for the purpose of the Business Plan).
(b) The Reports (other than the 2000 Outturn Report and the
Projections Report referred to in paragraph (b) of the
definition of Reports) either addressed to, or with Reliance
Letters in favour of, the Security Trustee (on behalf of the
Finance Parties and the Mezzanine Finance Parties) or any
Arranger on behalf of the Finance Parties and any Mezzanine
Arranger on behalf of the Mezzanine Finance Parties or to the
relevant Finance Parties and the relevant Mezzanine Finance
Parties.
(c) The Priority Letter, duly executed by the parties to it.
(d) Budget (on a quarterly basis) for 2001.
3. ACQUISITION DOCUMENTS AND RELATED MATTERS
(a) Copies of each Acquisition Document.
(b) Evidence that the MGG Acquisition has completed in accordance
with the terms of the Acquisition Documents and that either
the Transferred Assets and Transferred Liabilities (as defined
in the Singapore Separation Agreement) have been transferred
to Singapore SPV or that to the extent that any such
Transferred Assets or Transferred Liabilities have not been so
transferred the Agent is satisfied (acting reasonably) that
provisions are in place to provide that the MGG Group is
economically in substantially the same position as if those
Transferred Assets or Transferred Liabilities had been so
transferred.
(c) A certificate of an authorised signatory of the Company
certifying that:
(i) No condition of the Acquisition (in particular the
Acquisition Closing Conditions) and no right or
entitlement of the Initial Sponsors or the Investors,
the Company or any member of the Group (whether to
receive documents or otherwise) under the Acquisition
Documents has been waived or modified except with the
prior written consent of the Majority Lenders and
that the Acquisition Documents contain the full
agreement of the parties thereto as to the matters
set out therein;
-181-
(ii) following the making of the first Loans under the
Term Facilities no Group member shall have any
Financial Indebtedness outstanding (other than
Permitted Indebtedness).
(d) Evidence that the Antitrust Approvals (as defined in the
Business Combination Agreement) have been granted.
(e) Confirmation from MGG as to the amount of the Hoechst Closing
Amount (as defined in section 4.5 of the Singapore Separation
Agreement).
4. OTHER FINANCING DOCUMENTS
(a) Copies of:
(i) the executed Shareholders' Agreement together with
the agreed amendment relating to, INTER ALIA, the
treatment of proceeds received by the Company under
the BCA;
(ii) the executed Mezzanine Facility Agreement and the
Mezzanine Fee Letters; and
(iii) the executed China Subordination Agreement.
(b) Evidence satisfactory to the Agent that an aggregate amount of
at least EUR500,000,000 has been contributed by the Initial
Sponsors to the Company in cash through the subscription for,
and issue of, fully paid up shares of the Company and that the
Investors are the sole shareholders in the Company as at the
Closing Date.
(c) Evidence satisfactory to the Agent that loans equal to the
full amount of the facilities made available under the
Mezzanine Facility Agreement will be made under the Mezzanine
Facility Agreement either on or prior to the date the first
Utilisation is made.
(d) Evidence satisfactory to the Agent that Newco 2 owns 66 2/3
percent. of the issued share capital of MGG and that MIG has
contributed the Family MGG Shares to Newco 2 and that Newco 2
will, upon the registration of the increase in the share
capital of Newco 2, be the owner of 100 per cent. of the
issued share capital of MGG.
(e) The Funds Flow Statement.
(f) The Hedging Letter duly signed by the parties thereto.
(g) The Fee Letter referred to in Clause 13.5 (ARRANGEMENT FEE)
duly signed by the parties thereto.
(h) The Fee Letter referred to in Clause 13.6 (AGENCY FEE) duly
signed by the parties thereto.
(i) The Fee Letter referred to in Clause 13.7 (SECURITY TRUSTEE
FEE) duly signed by the parties thereto.
(j) The Syndication Letter duly signed by the parties thereto.
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(k) A certificate of an authorised signatory of the Company
certifying that each copy document delivered to the Agent
pursuant to paragraphs 3 and 4 of this Part 1 of Schedule 2 is
correct, complete and in full force and effect as at a date no
earlier than the date of this Agreement.
5. SECURITY, GUARANTEE AND PRIORITY DOCUMENTS
(a) Share Pledge by Newco 2 over 100% of the shares in MGG (it
being noted that such pledge will only be effective over
shares in MGG representing 66 2/3% of the registered share
capital of MGG until the required capital increase in the
share capital of Newco 2 is registered so as to make the
contribution of the Family MGG Shares to Newco 2 effective).
(b) Duly executed copy of the Intercreditor Deed.
(c) Where the Lenders' relevant counsel deems such to be either
necessary or desirable, any recordings, filings or other
action required to perfect the Security purported to be
created by the Security Documents referred to above
(including, without limitation, delivery of share certificates
and stock transfer forms executed in blank in relation to
pledged shares, noting of pledges on share registers,
application for registration of security and notices of
assignment).
(d) Duly executed Accession Letter by each Initial Borrower,
together with the satisfaction of the requirements of Clause
26.2 (ADDITIONAL BORROWERS) for the accession of each Initial
Borrower as an Additional Borrower.
(e) Duly executed Accession Letter by each Initial Guarantor
(other than ▇▇▇▇▇▇ Austria GmbH), together with the
satisfaction of the requirements of Clause 26.4 (ADDITIONAL
GUARANTORS) for the accession of each Initial Guarantor as an
Additional Guarantor.
(f) Evidence (based on the management accounts of the MGG Group)
that upon the Initial Guarantors acceding as Guarantors and
providing the Security to be provided in accordance with
Schedule 15 (SECURITY PRINCIPLES):
(i) the aggregate (without double counting) of (1) the
EBITDA of each of the Guarantors (but ignoring losses
before interest and tax of any Guarantor) and (2) the
EBITDA of each Consolidated Subsidiary of MGG which
is not a Guarantor (but ignoring any losses before
interest and tax of that Consolidated Subsidiary) in
respect of which 95% or more of its voting and issued
share capital is pledged pursuant to a Security
Document (the Guarantors referred to in paragraph (1)
of this paragraph (f)(i) taken together with the
Subsidiaries referred to in paragraph (2) of this
paragraph (f)(i) being collectively referred to as
the "SECURITY PARTIES"); and
(ii) the aggregate gross assets (without double counting
and excluding assets which are not included on
consolidation) of the Security Parties,
exceed (in relation to (i) above) 80 per cent. of the
consolidated EBITDA and (in relation to (ii) above) 65 per
cent. of the consolidated gross assets of the Newco 2 Group;
and
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(iii) the aggregate (without double counting) of the EBITDA
of each of the Guarantors (but ignoring losses before
interest and tax of any Guarantor); and
(iv) the aggregate gross assets (without double counting
and excluding assets which are not included on
consolidation) of the Guarantors,
exceed (in relation to (iii) above) 70 per cent. of the
consolidated EBITDA and (in relation to (iv) above) 60 per
cent. of the consolidated gross assets of the Newco 2 Group.
(g) Evidence satisfactory to the Agent in relation to the Initial
Guarantors that on the first Utilisation of the Facilities any
Financial Indebtedness which benefits from Security or Quasi
Security over assets which will also be subject to the
Security to be created under any Security Documents to be
entered into by such Initial Guarantors will be repaid.
(h) Duly executed Austrian Guarantee, together with all of the
documents and evidence referred to in Part II of this Schedule
in relation to ▇▇▇▇▇▇ Austria GmbH other than paragraph 1
thereof.
(i) An original executed irrevocable power of attorney from MIG
authorising the Security Trustee to execute a pledge on behalf
of MIG over all of its shares in MGG if Newco 2 does not own
100% of the shares in MGG within 20 days of the date of such
power of attorney (which is anticipated to be signed on the
Closing Date), together with evidence that such power of
attorney has been duly executed by a duly authorised
signatory.
6. LEGAL OPINIONS
(a) A legal opinion of ▇▇▇▇▇▇▇▇ Chance LLP, London, legal advisers
to the Arrangers and the Agent in England, substantially in
the form distributed to the Original Lenders prior to signing
this Agreement.
(b) A legal opinion of ▇▇▇▇▇▇▇▇ Chance Punder, legal advisers to
the Arrangers and the Agent in Germany, substantially in the
form distributed to the Original Lenders prior to signing this
Agreement.
7. OTHER DOCUMENTS AND EVIDENCE
(a) A copy of any other Authorisation or other document, opinion
or assurance which the Agent reasonably considers to be
necessary (if it has notified the Company accordingly) in
connection with the entry into and performance of the
transactions contemplated by any Finance Document or for the
validity and enforceability of any Finance Document.
(b) Evidence that the fees, costs and expenses then due pursuant
to Clause 13 (FEES) and Clause 18 (COSTS AND EXPENSES) have
been paid or will be paid by or on the first Utilisation Date.
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(c) A copy of a Certificate of Merger from the Secretary of State
of the State of Delaware evidencing that ▇▇▇▇▇▇ AGS, Inc. has
merged into ▇▇▇▇▇▇ Griesheim Industries, Inc. (with ▇▇▇▇▇▇
Griesheim Industries, Inc. as the surviving entity).
(d) A signed copy of the engagement letter between MGG and KPMG
pursuant to which KPMG agrees to provide Auditors Reports.
8. AGREED FORM DOCUMENTS
(a) Agreed form of Permitted Exchange Notes Security.
(b) Agreed form of Permitted High Yield Security.
(c) Agreed forms of Treasury Borrower Loan Agreement.
(d) Agreed form of High Yield Subordination Agreement.
(e) Agreed form of Exchange Notes Subordination Agreement.
(f) Agreed form of Newco 2 Loan Subordination Agreement.
-185-
PART II
CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED BY AN ADDITIONAL OBLIGOR
1. An Accession Letter, duly executed by the Additional Obligor and the
Obligor's Agent.
2. A copy of the constitutional documents of the Additional Obligor in the
form required by the Agent together with a copy of the resolutions of
the shareholders of the Additional Obligor adopting such changes to the
constitutive documents of the Additional Obligor as the Agent shall have
required.
3. Where the Lenders' relevant counsel deems such to be either necessary or
desirable, a copy of a resolution of the board of directors (or the
equivalent thereof) of the Additional Obligor:
(a) 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;
(b) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and
(c) 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.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3(b) above.
5. Where the Lenders' relevant counsel deems 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 other evidence setting out the names and
signatures of the persons authorised to sign, on behalf of the
Additional Obligor, each Finance Document to which the Additional
Obligor is or is to be a party and any documents to be delivered by the
Additional Obligor pursuant to any of the Finance Documents.
6. Where the Lenders' relevant counsel deems such to be either necessary or
desirable for an Additional Guarantor, either a copy of a resolution
signed by all the holders of the issued shares in such Additional
Guarantor or a resolution of the supervisory board, work council or
equivalent supervisory body of such Additional Guarantor, approving the
terms of, and the transactions contemplated by, the Finance Documents to
which that Additional Guarantor is a party.
7. A certificate of the Additional Obligor (signed by a director or
equivalent) confirming that borrowing or guaranteeing, as appropriate,
the Total Commitments would not cause any borrowing, guaranteeing or
similar limit (which is imposed by law or under its constitutive
documents and binding on it) to be exceeded.
-186-
8. A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in paragraphs 1 through 7 of
this Part II of Schedule 2 is correct, complete and in full force and
effect as at a date no earlier than the date of the Accession Letter.
9. A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers (acting reasonably) 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.
10. If available, the latest audited financial statements of the Additional
Obligor.
11. A legal opinion of ▇▇▇▇▇▇▇▇ Chance LLP, London, legal advisers to the
Arrangers and the Agent in England.
12. If the Additional Obligor is incorporated in a jurisdiction other than
England, a legal opinion of the legal advisers to the Arrangers and the
Agent in the jurisdiction in which the Additional Obligor is
incorporated.
13. If the Security to be granted by the proposed Additional Obligor
involves the laws of any jurisdiction other than England and the
jurisdiction of an incorporation of the proposed Additional Obligor,
legal opinion(s) from the legal advisers to the Arrangers and Agent or
the legal advisers to the Obligor's Agent in relation to the laws of
such other jurisdiction.
14. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and is not to be a party to this Agreement, 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.
15. If the Additional Obligor is to become an Additional Borrower, the
accession of such an Additional Obligor to this Agreement as an
Additional Guarantor.
16. Duly executed deed of accession to the Intercreditor Deed by the
Additional Obligor as an Obligor, Intra-Group Borrower and Intra-Group
Lender.
17. Such Security Documents creating such Security as the Agent reasonably
requires in accordance with the Security Principles, duly executed by
the Additional Obligor and the Security Trustee (or, if appropriate, the
Finance Parties).
18. If the Additional Obligor is incorporated in any state of the United
States of America, a certificate of solvency signed by the Chief
Financial Officer of such Additional Obligor.
19. Where the Lenders' relevant counsel reasonably deems such to be either
necessary or advisable, any recordings, filings or other action required
to perfect the Security purported to be created by the Security
Documents referred to above (including, without limitation, delivery of
share certificates and stock transfer forms executed in blank in
relation to pledged shares, noting of pledges on share registers,
application for registration of security and notices of assignment).
20. The constitutive documents of any member of the Group whose shares are
subject to Security under any of the Security Documents referred to
above in the form required by the Agent together with any resolutions of
the shareholders of such member of the Group adopting such
-187-
changes to the constitutive documents of such member of the Group as
the Agent shall have reasonably required to, among other things, remove
any restriction on any transfer of shares or partnership interests (or
equivalent) in such member of the Group pursuant to any enforcement of
any of such Security Documents.
21. If the Additional Obligor is a Treasury Borrower, a Treasury Borrower
Loan Agreement executed by it.
-188-
PART III
ADDITIONAL CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED BY DEBTCO AS AN ADDITIONAL OBLIGOR
1. All of the documents and evidence referred to in Part II of this
Schedule.
2. Evidence that, immediately upon acceding as an Additional Obligor,
Debtco will be the sole shareholder of MGG.
3. Evidence that, immediately upon acceding as an Additional Obligor,
Debtco will assume the rights and obligations of MGG under the Mezzanine
Facility Agreement or any Direct Mezzanine Refinancing.
4.
(a) If at the time of Debtco's accession Newco 2 has not pledged
100% of the shares in MGG pursuant to a Security Document, a
share pledge over 100% of the shares in MGG.
(b) If at the time of Debtco's accession Newco 2 has pledged 100%
of the shares in MGG pursuant to a Security Document, evidence
that such share pledge remains in force and is acknowledged by
▇▇▇▇▇▇.
▇. An assignment of all of Debtco's receivables pursuant to a Global
Assignment Agreement, such assignment to include (without limitation and
unless secured pursuant to a pledge referred to in paragraph 6 below) an
assignment of all of Debtco's rights under all Intra-Group Loans where
it is the lender.
6. An assignment over any Intra-Group Loans by Debtco where Debtco is the
lender, such pledge to include a waiver of Debtco's rights and
obligations against the borrowers of such Intra-Group Loans upon the
suspensive condition (AUFSCHIEBENDE BEDINGUNG) of the receipt of a
notice by the Security Trustee of the sale of shares in MGG following
enforcement of the share pledge over the shares in MGG.
7. Security over Debtco's bank accounts pursuant to an Account Pledge,
including over a bank account opened by it with the Agent which is
identified as a Prepayment Escrow Account and pursuant to which no
amounts may be withdrawn from the Prepayment Escrow Account other than
as provided in Clause 9 (REPAYMENT AND CANCELLATION).
8. Evidence from appropriate advisers and other appropriate sources that
having Debtco as the German Group Member which is a Borrower under this
Agreement and the Mezzanine Facility Agreement might reasonably be
expected to be more materially advantageous from an overall German Tax
perspective than having MGG as the German Group Member which is a
Borrower under this Agreement and the Mezzanine Facility Agreement.
-189-
SCHEDULE 3
REQUESTS
PART I
UTILISATION REQUEST
From: [BORROWER]
To: [AGENT]
Dated:
Dear Sirs
[▇▇▇▇▇▇ GRIESHEIM GMBH] - EUR1,050,000,000 AND $540,000,000
SENIOR FACILITIES
AGREEMENT DATED - 2001 (THE "FACILITY AGREEMENT")
1. [We wish to borrow a Loan on the following terms]/[We wish [NAME OF
FRONTING BANK] to issue a [Letter of Credit]/[Bank Guarantee] as
follows:]
Proposed Utilisation Date: [ ] (or, if that is not a Business Day,
the next Business Day)
Facility to be utilised: [Term Disposal Facility]/[Term A Facility]/[Term B
Euro Facility]/[Term B Dollar Facility]/[Term C
Euro Facility]/[Term C Dollar Facility]/ [Revolving
Facility I]/[Revolving Facility II]*
Currency of [Loan]/[Letter of Credit/
[Bank Guarantee]: [ ]
Amount: [ ] or, if less, the Available Facility
[Interest Period:] [ ]
[Expiry Date:] [ ]
[Fronting Bank:] [ ]
2. We confirm that each condition specified in Clause 4.2 (FURTHER
CONDITIONS PRECEDENT) required to be satisfied in connection with this
Utilisation is satisfied on the date of this Utilisation Request.
3. [The proceeds of this Loan should be credited to [ACCOUNT].]/[The
[Letter of Credit/Bank Guarantee] should be issued in favour of [NAME OF
BENEFICIARY] in the form attached and delivered to the recipient at
[ADDRESS OF BENEFICIARY] and is requested to be issued for the following
purpose: [ ]].
4. This Utilisation Request is irrevocable, save that if it relates solely
to the issue of a Letter of Credit or Bank Guarantee in which case it
may be revoked by notice in writing to the Agent and the relevant
Fronting Bank at any time prior to the requested Letter of Credit or
Bank Guarantee being issued.
-190-
Yours faithfully
-----------------------------
authorised signatory for
[NAME OF RELEVANT BORROWER]
* delete as appropriate
-191-
PART II
SELECTION NOTICE(1)
APPLICABLE TO A TERM FACILITIES LOAN
From: [BORROWER]
To: [AGENT]
Dated:
Dear Sirs
[▇▇▇▇▇▇ GRIESHEIM GMBH] - EUR1,050,000,000 AND $540,000,000
SENIOR FACILITIES
AGREEMENT DATED - 2001 (THE "FACILITY AGREEMENT")
1. We refer to the following [Term Disposal Facility]/[Term A
Facility]/[Term B Euro Facility]/[Term B Dollar Facility]/[Term C Euro
Facility]/[Term C Dollar Facility] Loan[s] in [IDENTIFY CURRENCY] with
an Interest Period ending on [__________]*.
2. [We request that the above [Term Disposal Facility]/[Term A
Facility]/[Term B Euro Facility]/[Term B Dollar Facility]/[Term C Euro
Facility]/[Term C Dollar Facility] Loan[s] be divided into [ ] [Term
Disposal Facility]/[Term A Facility]/[Term B Euro Facility]/[Term B
Dollar Facility]/[Term C Euro Facility]/[Term C Dollar Facility] Loans
with the following Base Currency Amounts and Interest Periods:] **
OR
[We request that the next Interest Period for the above [Term Disposal
Facility]/[Term A Facility]/[Term B Dollar Facility]/[Term C Euro
Facility]/ [Term C Dollar Facility] Loan[s] is [ ]].***
3. We request that the above [Term Disposal Facility]/[Term A
Facility]/[Term B Dollar Facility]/[Term C Euro Facility] Loan[s]
[is]/[are] [denominated in the same currency for the next Interest
Period]/[denominated in the following currencies: [ ]. As this
results in a change of currency we confirm that each applicable
condition specified in Clause 4.2 (FURTHER CONDITIONS PRECEDENT) is
satisfied on the date of this Selection Notice. The proceeds of any
change in currency should be credited to [ACCOUNT].] .
4. This Selection Notice is irrevocable.
Yours faithfully
--------------------------------------------------------------------------------
(1) This may be used to (i) select the currency of an existing Term A Facility
Loan for its next Interest Period, (ii) request the division of an existing
Term Facility Loan into two or more Term Facility Loans having specified
Base Currency Amounts and Interest Periods, and (iii) select the duration of
the next Interest Period for an existing Term Facility Loan.
* Insert details of all Term Facility Loans in the same currency which have
an Interest Period ending on the same date.
** Use this option if division of Term Facility Loans is requested.
*** Use this option if sub-division is not required.
-192-
--------------------------
authorised signatory for
[the Obligor's Agent on behalf of] [name of relevant Borrower]
-193-
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate in relation to
the cost of compliance with (a) the requirements of the Bank of England
and/or the Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"ADDITIONAL COST RATE") in accordance with the paragraphs set out below.
The Mandatory Cost will be calculated by the Agent as a weighted average
of the Lenders' Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will
be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Lender to the Agent 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 Agent as follows:
(a) in relation to a domestic sterling Loan:
AB + C(B - D) + E x 0.01
------------------------ per cent. per annum
100 - (A + C)
(b) in relation to a Loan in any currency other than domestic
sterling:
E x 0.01
-------- per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Lender is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate of interest (excluding the Margin and
the Mandatory Cost) payable for the relevant Interest Period
on the Loan.
C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of
England to the Agent on interest bearing Special Deposits.
-194-
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
L1,000,000 of the Fee Base of that Lender.
5. For the purposes of this Schedule:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the
meanings given to them from time to time under or pursuant to
the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England;
(b) "FEES REGULATIONS" means the Banking Supervision (Fees)
Regulations 2000 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
(c) "FEE BASE" has the meaning given to it, and will be calculated
in accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by subtracting
D from B shall be taken as zero. The resulting figures shall be rounded
to four decimal places.
7. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
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 Agent may reasonably require
for such purpose.
Each Lender shall promptly notify the Agent in writing of any change to
the information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Lender for the purpose of A,
C and E above shall be determined by the Agent based upon the
information supplied to it pursuant to paragraph 7 above and on the
assumption that, unless a Lender notifies the Agent to the contrary,
each Lender's obligations in relation to cash ratio deposits, 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.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender pursuant to paragraphs 3 and 7 above is true and correct in
all respects.
10. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
-195-
11. The Agent may from time to time, after consultation with the Obligor's
Agent and the Lenders, determine and notify to all Parties any
amendments which are required to be made to this Schedule in order to
comply with any change in law, regulation or any requirements from time
to time imposed by the Bank of England, the Financial Services Authority
or the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all
Parties.
-196-
SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
PART I
To: [ ] as Agent and [ ] as Security Trustee
From: [THE EXISTING LENDER] (the "EXISTING LENDER") and [THE NEW LENDER]
(the "NEW LENDER")
Dated:
[▇▇▇▇▇▇ GRIESHEIM GMBH] - EUR1,050,000,000 AND $540,000,000
SENIOR FACILITIES
AGREEMENT DATED - 2001 (THE "FACILITY AGREEMENT")
1. We refer to Clause 25.5 (PROCEDURE FOR TRANSFER):
(a) The Existing Lender and the New Lender agree to the Existing
Lender and the New Lender transferring by novation all or part
of the Existing Lender's Commitment, rights and obligations
referred to in the Schedule in accordance with Clause 25.5
(PROCEDURE FOR TRANSFER).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of
Clause 33.2 (ADDRESSES) and Clause 31 (NOTICES) of the
Intercreditor Deed are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 25.4 (LIMITATION
OF RESPONSIBILITY OF EXISTING LENDERS).
3. The New Lender confirms that it has received a copy of each of the
Security Documents governed by German law which are pledges, is aware of
their contents and hereby expressly consents to the declarations of the
Security Trustee made on behalf of the New Lender as future pledgee in
such Security Documents.
4. The New Lender hereby agrees with each other person who is or who
becomes a party to the Intercreditor Deed that with effect on and from
the Transfer Date it will be bound by the Intercreditor Deed referred to
in the Facility Agreement as a Senior Lender [and Hedge Counterparty]
([each] as defined in the Intercreditor Deed) as if it had been party to
the Intercreditor Deed in that capacity.
5. This Transfer Certificate is executed as a deed by the New Lender and is
governed by English law.
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[INSERT RELEVANT DETAILS]
[FACILITY OFFICE ADDRESS, FAX NUMBER AND ATTENTION DETAILS FOR NOTICES AND
ACCOUNT DETAILS FOR PAYMENTS,]
-197-
EXECUTED AS A DEED
By:
[Existing Lender] [New Lender]
By: acting by [insert
signatory/signatories names] in
the presence of:
Signature of witness:
Name of witness:
Address of witness:
This Transfer Certificate is accepted by the Agent and the Transfer Date
is confirmed as [ ] and the Agent hereby confirms that the transfer has
been recorded in the Register on the Transfer Date.
[Agent]
By:
-198-
PART II
LMA TRANSFER CERTIFICATE (PAR)
To: [ ] as Agent and [ ] as Security Trustee
BANK: Date:
TRANSFEREE:
This Transfer Certificate is entered into pursuant to (i) the agreement (the
"SALE AGREEMENT") evidenced by the Confirmation dated between the
Bank and the Transferee (acting directly or through their respective agents)
and (ii) the Credit Agreement and (iii) the Intercreditor Deed (as defined in
the Credit Agreement) and is entered into by the Transferee as a deed.
On the Transfer Date, the transfer by way of novation from the Bank to the
Transferee on the terms set out herein and in the Credit Agreement shall become
effective subject to:-
(i) the Sale Agreement and the terms and conditions incorporated
in the Sale Agreement;
(ii) the terms and conditions annexed hereto; and
(iii) the schedule annexed hereto,
all of which are incorporated herein by reference.
The Transferee hereby agrees with each other person who is or who becomes a
party to the Intercreditor Deed that with effect on and from the Transfer Date
it will be bound by the Intercreditor Deed as a Senior Lender [and Hedge
Counterparty] ([each] as defined in the Intercreditor Deed) as if it had been
party to the Intercreditor Deed in that capacity. The address specified in the
Schedule hereto shall also be the address of the Transferee for the purpose of
Clause 31 (NOTICES) of the Intercreditor Deed.
THE BANK THE TRANSFEREE
[ ] [ ]
By: By:
THE AGENT
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [ ] and the Agent hereby confirms that the transfer has
been recorded in the Register on this Transfer Date.
[Name of Agent]
By:
-199-
THE SCHEDULE
CREDIT AGREEMENT DETAILS:
Borrower(s): _________________________________________
Credit Agreement Dated _________________________________________
Guarantor(s): _________________________________________
Agent Bank: No Yes (specify)____________________
Security: _________________________________________
Total Facility Amount: _________________________________________
Governing Law: _________________________________________
Additional Information: _________________________________________
TRANSFER DETAILS:
Name of Tranche Facility: _________________ __________________
Nature (Revolving, Term, Acceptances
Guarantee/Letter of Credit, Other): _________________ __________________
Final Maturity: _________________ __________________
PARTICIPATION TRANSFERRED
Commitment transferred1 _________________ __________________
Drawn Amount (details below):(1) _________________ __________________
Undrawn Amount:(1) _________________ __________________
Settlement Date: _________________________________________
DETAILS OF OUTSTANDING CREDITS(1)
Specify in respect of each Credit:
Transferred Portion (amount): _________________
Tranche/Facility: _________________
Nature: Term Revolver Acceptance Guarantee/Letter
of Credit
Other (specify)__________________
Details of other Credits are set out on the attached sheet
ADMINISTRATION DETAILS
Bank's Receiving Account: ________________________________
Transferee's Receiving Account: ________________________________
ADDRESSES
Bank Transferee
[ ] [ ]
Address: Address:
Telephone: Telephone:
Facsimile: Facsimile:
Telex: Telex:
Attn/Ref Attn/Ref
-------------------------------------------------------------------------------
(1) As at the date of the Tranfer Certificate
-200-
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, the Credit Agreement or the Sale Agreement.
2. TRANSFER
The Bank requests the Transferee to accept and procure the transfer by
novation of all or a part (as applicable) of such participation of the
Bank under the Credit Agreement as is set out in the relevant part of
the Transfer Certificate under the heading "Participation Transferred"
(the "Purchased Assets") by counter-signing and delivering the Transfer
Certificate to the Agent at its address for the service of notice
specified in the Credit Agreement. On the Transfer Date the Transferee
shall pay to the Bank the Settlement Amount as specified in the pricing
letter between the Bank and the Transferee 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 Transferee hereby requests the Agent to accept the Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of the Credit Agreement so as to take effect in accordance with
the terms of the Credit Agreement on the Transfer Date or on such later
date as may be determined in accordance with the terms thereof.
4. TRANSFEREE'S UNDERTAKING
The Transferee hereby undertakes with the Agent and the Bank and each of
the other parties to the Credit Documentation 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 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 Receiving Account of that other party. Each party
may designate a different account as its Receiving Account for payment
by giving the other not less than five Business Days notice before the
due date for payment.
-201-
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 AGENT
The 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 ensure to the benefit
of each party and its successors and permitted assigns PROVIDED THAT
neither party may assign or 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 England, and the parties submit to the non-exclusive
jurisdiction of the English 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
England and
Wales to act as its process agent.
9. GERMAN LAW SECURITY
The Transferee confirms that it has received a copy of each of the
Security Documents governed by German law which are pledges, is aware of
their contents and hereby expressly consents to the declarations of the
Security Trustee made on behalf of the New Lender as future pledgee in
such Security Documents
-202-
PART III
DEBTCO EXIT TRANSFER CERTIFICATE
To: [ ] as Agent
From: [Debtco] ("DEBTCO") and [Initial German Borrowers] (the "INITIAL GERMAN
BORROWERS")
Dated:
[▇▇▇▇▇▇ GRIESHEIM GMBH] - EUR1,050,000,000 AND $540,000,000
SENIOR FACILITIES
AGREEMENT DATED - 2001 (THE "FACILITY AGREEMENT")
1. This is to record that transfers referred to in paragraph (a) of Clause
26.8 (TRANSFERS ON DEBTCO EXIT DATE) which are to take effect in
accordance with such Clause on the Debtco Exit Date in respect of the
following Utilisations are to be transferred from Debtco to the Initial
German Obligors as follows:
UTILISATION AMOUNT OF CURRENT INTEREST AMOUNT TRANSFERRED INITIAL GERMAN
UTILISATION PERIOD/TERM BORROWER TO WHOM
TRANSFERRED
[for example, Term A
Facility Loan]
2. This certificate is governed by English law.
[Debtco] [Each Initial German Borrower]
By: By:
Accepted by the Agent
[Agent]
By:
Date:
-203-
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [ ] as Agent and [ ] as Security Trustee
From: [SUBSIDIARY] and [Obligor's Agent]
Dated:
Dear Sirs
[▇▇▇▇▇▇ GRIESHEIM GMBH] - EUR1,050,000,000 AND $540,000,000
SENIOR FACILITIES
AGREEMENT DATED - 2001 (THE "FACILITY AGREEMENT")
1. [SUBSIDIARY] agrees to become an Additional [Borrower]/[Guarantor] and
to be bound by the terms of the Facility Agreement as an Additional
[Borrower]/[Guarantor] pursuant to Clause [26.2 (ADDITIONAL
BORROWERS)]/[Clause 26.4 (ADDITIONAL GUARANTORS)] of the Facility
Agreement [except that [insert any agreed limitations on the
[Guarantor's] obligations under Clause 19 (GUARANTEE AND INDEMNITY)].
[SUBSIDIARY] is a company duly incorporated under the laws of [NAME OF
RELEVANT JURISDICTION].
2. [Subsidiary] hereby agrees with each other person who is or who becomes
a party to the Intercreditor Deed (as defined in the Facility Agreement)
that with effect on and from the date hereof it will be bound by the
Intercreditor Deed as an Obligor, Intra-Group Lender and Intra-Group
Borrower (each as defined in the Intercreditor Deed).
3. [SUBSIDIARY'S] administrative details are as follows:
Address:
Fax No:
Attention:
4. This letter is governed by English law.
5. [The Obligor's Agent confirms that [SUBSIDIARY] is a Treasury
Borrower].*
This Accession Letter is entered into by [SUBSIDIARY] as a deed.
EXECUTED as a deed
by
[Obligor's Agent] [Subsidiary]
-------------------------------------------------------------------------------
* Only include if relevant.
-204-
acting by [name of signatory/ies] in the
presence of:
Signature of witness:
Name of witness:
Address of witness:
[Note: each of the following needs to be added if a Luxembourg company is
acceding as an Obligor:
FOR PURPOSES OF ARTICLE 1 OF THE PROTOCOL ANNEXED TO THE CONVENTION ON
JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS,
SIGNED IN BRUSSELS ON 27 SEPTEMBER 1968 AND WITHOUT PREJUDICE TO THE FOREGOING
EXECUTION OF THE INTERCREDITOR DEED BY THE PARTIES HERETO [▇▇▇▇▇▇ FINANCE S.A.]
EXPRESSLY AND SPECIFICALLY CONFIRMS ITS AGREEMENT TO THE PROVISIONS OF CLAUSE 38
OF THE INTERCREDITOR DEED.
..................................
[▇▇▇▇▇▇ Finance S.A.]
[▇▇▇▇▇▇ FINANCE S.A.] DECLARES TO HAVE SPECIFIC KNOWLEDGE OF AND EXPRESSLY AND
SPECIFICALLY ACCEPTS, FOR THE PURPOSES OF ARTICLE 1135-1 OF THE LUXEMBOURG CIVIL
CODE, THE CONTENT OF THE FOLLOWING CLAUSES OF THE INTERCREDITOR DEED: 9.1, 9.2,
11.3, 14.2, 14.3, 14.5, 19.5, 22.1, 34.7, 34.10, 34.14, 34.18, 34.19 AND 38.1.
..................................
[▇▇▇▇▇▇ Finance S.A.]
FOR PURPOSES OF ARTICLE 1 OF THE PROTOCOL ANNEXED TO THE CONVENTION ON
JURISDICTION AND THE ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS,
SIGNED IN BRUSSELS ON 27 SEPTEMBER 1968 AND WITHOUT PREJUDICE TO THE FOREGOING
EXECUTION OF THIS AGREEMENT BY THE PARTIES HERETO [▇▇▇▇▇▇ FINANCE S.A.]
EXPRESSLY AND SPECIFICALLY CONFIRMS ITS AGREEMENT TO THE PROVISIONS OF CLAUSE
40.1 OF THE FACILITY AGREEMENT.
..................................
[▇▇▇▇▇▇ Finance S.A.]
[▇▇▇▇▇▇ FINANCE S.A.] DECLARES TO HAVE SPECIFIC KNOWLEDGE OF AND EXPRESSLY AND
SPECIFICALLY ACCEPTS, FOR THE PURPOSES OF ARTICLE 1135-1 OF THE LUXEMBOURG CIVIL
CODE, THE CONTENT OF THE FOLLOWING CLAUSES OF THE FACILITY AGREEMENT: CLAUSES 8,
9, 14, 16, 17.2, 19.24, 25.4, 27.9, 40.
..................................
[▇▇▇▇▇▇ Finance S.A.]
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-206-
SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [ ] as Agent
From: [RESIGNING OBLIGOR] and [Obligor's Agent]
Dated:
Dear Sirs
[▇▇▇▇▇▇▇▇ VERWALTUNGSGESELLSCHAFT MBH] - EUR1,050,000,000 AND $540,000,000
SENIOR FACILITIES AGREEMENT DATED - 2001 (THE "FACILITY AGREEMENT")
1. Pursuant to [Clause 26.3 (RESIGNATION OF A BORROWER)]/[Clause 26.6
(RESIGNATION OF A GUARANTOR)], we request that [RESIGNING OBLIGOR] be
released from its obligations as a [Borrower]/[Guarantor] under the
Facility Agreement.
2. We confirm that:
(a) no Default is continuing or would result from the acceptance
of this request; and
(b) [that [resigning Borrower] is under no actual or contingent
obligations (in respect of principal or interest in relation
to any Loan made to it or in respect of any actual or
contingent obligations relating to a Bank Guarantee or Letter
of Credit issued at its request) as a Borrower under any
Finance Document.]*
3. This letter is governed by English law.
[Obligor's Agent] [Subsidiary]
By: By:
-------------------------------------------------------------------------------
* Insert if Borrower resigning.
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SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: [ ] as Agent
From: [Newco 2]
Dated:
Dear Sirs
[COMPANY] - EUR1,050,000,000 AND $531,000,000
SENIOR FACILITIES AGREEMENT
DATED - 2001 (THE "FACILITY AGREEMENT")
1. We refer to the Facility Agreement. This is a Compliance Certificate.
2. We confirm that:
(a) The ratio of the EBITDA for the Relevant Period ending on
[Quarter Date] to the Net Cash Interest Payable for the
Relevant Period ended on such Quarter Date was [ ]:1.0.
(b) The ratio of Total Senior Debt on [Quarter Date] to EBITDA of
the Newco 2 Group for the Relevant Period ending on such
Quarter Date was [ ]:1.0.
(c) The ratio of Operating Cash Flow to Total Debt Service for the
Relevant Period ended on [Quarter Date] was [ ]:1.0.
(d) The ratio of Total Debt on [Quarter Date] to the EBITDA of the
Newco 2 Group for the Relevant Period ending on such Quarter
Date was [ ]:1.0.
(e) Total Debt on [Quarter Date] was EUR [ ].
(f) [The aggregate Capital Expenditure of the members of the Newco
2 Group for the Financial Quarter ended [ ] [2001/2002] was
[ ]/The aggregate Capital Expenditure of the members of the
Newco 2 Group for the calendar year ended on [ ] was [ ].
3. On the basis of above, we confirm that:
(a) the Margin in respect of Term A Facility Loans and Revolving
Loans after your receipt of this Compliance Certificate will
be [ ] per cent. per annum; and
(b) the Margin in respect of Term B Euro Facility Loans and Term B
Dollar Facility Loans after your receipt of this Compliance
Certificate will be [ ] per cent. per annum; and
(c) the Margin in respect of Term C Euro Facility Loans and Term C
Dollar Facility Loans after your receipt of this Compliance
Certificate will be [ ] per cent. per annum.
4. [We also confirm that:
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(a) the aggregate EBITDA of the Security Parties for the Relevant
Period ended on [ ] was [ ]% of the consolidated EBITDA of the
Newco 2 Group for that Relevant Period;
(b) the aggregate gross assets of the Security Parties as at [ ]
was [ ]% of the consolidated gross assets of the Newco 2 Group
as at such date;
(d) the aggregate EBITDA of the Guarantors for the Relevant Period
ended on [ ] was [ ]% of the consolidated EBITDA of the Newco
2 Group for that Relevant Period;
(e) the aggregate gross assets (without double counting and
excluding assets which are not included on consolidation) of
the Guarantors as at [ ] was [ ]% of the consolidated gross
assets of the Newco 2 Group as at such date; and
(f) the Material Companies for the purposes of paragraphs (b) and
(c) of the definition of Material Company are as follows:
[ ]
5. For the purpose of the definition of Relevant Debt Relief Amount we
hereby confirm that the following assets were disposed of during the
[Financial Quarter/calendar year ended [ ]]: [insert details of assets]
and of those assets [ ] were assets disposed of under the Disposal Plan
and [ ] were assets falling within paragraph (i) of the definition of
Permitted Disposals and the Debt Relief Amount relating to each such
disposal is as follows: [include amount and how calculated].
6. [We confirm that no Default is continuing.]*
..........................
Prokurist
of
[Newco 2]
-------------------------------------------------------------------------------
* If this statement cannot be made, the certificate should indentify any
Default that is continuing and the steps, if any, being taken to remedy it.
-209-
SCHEDULE 9
RESTRUCTURING PROGRAMME
In 2000 MGG management commissioned separate studies by ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ for the purpose of achieving substantial cost savings by restructuring
its operations and through investment in its information technology (IT)
processes both at the headquarters and at the regional levels. Based in part on
the results of these studies, MGG management approved a restructuring programme
for the Group. Restructuring of the Group's IT capabilities has been underway
since 2000, and the general cost savings phase of the programme is anticipated
to be introduced in March 2001. The entire restructuring programme is
anticipated to be completed by the end of 2003.
COST SAVINGS
The cost savings phase of the restructuring programme involves the relocation of
the Group's corporate headquarters from Frankfurt am Main to Krefeld, Germany,
the reorganisation of certain of the Group's existing lines of business and
related relocation of business and personnel, streamlining functions of the
Group's management and personnel, and the introduction of new operational
procedures to optimise production capacity. Implementation of these measures
will require expenditures in the following categories:
1. Reduction in headcount - Europe Engineering Group
2. Reduction in headcount - Operations throughout Europe
3. Optimization of bulk gas transportation in Europe
4. Efficient cylinder management throughout Europe
5. Reduction of Marketing & Sales Personnel in Europe
6. Streamlining of application activities throughout European organisation
7. Corporate Office headcount reduction
8. Relocation of Corporate Office from Frankfurt to Krefeld
9. Reduction in headcount - Non-core Regional Headquarters (i.e. expats,
regional offices).
10. Headcount reduction in IT Germany
11. General Administration headcount reduction in Germany
12. Other General Administration reduction - Europe (non-German)
The types of expenses and costs that will be associated with these categories
are:
o relocation and moving expenses
o severance payments
o penalty fees for the termination of commercial real estate and equipment
leases
o investment in new office equipment and furniture
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o capital expenditure in IT in connection with operational improvements and
o associated ancillary fees and costs, including depreciation of capital
costs
o potential penalty fees for the termination of supplier / distribution
agreements.
o write-off of operational fixed assets (i.e. tanks, cylinders, etc.)
IT RESTRUCTURING
The Group's IT capabilities and infrastructure are being upgraded, with
improvements being made in information technology in connection with managing
the Group's supply chain in Europe, and its business to business integration
with customers and suppliers, and its financial management systems.
This will include purchase and installation of new hardware/software in
connection with:
1. European supply chain management systems
2. Cylinder management system for transportation of gas cylinders
throughout Europe
3. Introduction of business to business applications and integration
4. New financial management and accounting software
5. IT infrastructure to support the above projects
Other costs will include:
o training
o installation
o maintenance
o trial and associated start-up costs
o depreciation of capital expenditures
-211-
SCHEDULE 10
TIMETABLES
PART I
LOANS
LOANS IN EURO LOANS IN STERLING LOANS IN LOANS IN
DOLLARS OTHER
CURRENCIES
Agent notifies the Obligor's Agent if a U-4
currency is approved as an Optional
Currency in accordance with Clause 4.3
(CONDITIONS RELATING TO OPTIONAL
CURRENCIES AND THE EURO UNIT) (if
relevant)
Delivery of a duly completed Utilisation U-3 U-1 U-3 U-3
Request (Clause 5.1 (DELIVERY OF A 9.30am 9.30am 9.30am 9.30am
UTILISATION REQUEST) or a Selection
Notice (Clause 11.1 (SELECTION OF (U noon for UR (U noon for UR (U noon for UR
INTEREST PERIODS AND TERMS)) and U9.30am for and U9.30am for and U9.30am
SN if Loan to be SN if Loan to be for SN if Loan
made on Closing made on Closing to be made on
Date) Date) Closing Date)
Agent determines amount of the Loan in U-3 U-1 U-3 U-3
Optional Currency in accordance with 11.00am 11.00am 11.00am 11.00am
Clause 6.3 (CHANGE OF CURRENCY)
(U1.00pm for UR (U1.00pm for (U1.00pm
UR and UR and for UR and
U11.00am for UR11.00am for U11.00am
SN if Loan to SN if Loan to for SN if
be made on be made on Loan to be
Closing Date) Closing Date) made on
Closing
Date)
Agent determines (in relation to a U-3 U-1 U-3 U-3
Utilisation) the Base Currency Amount of Noon Noon Noon Noon
the Loan, if required under Clause 5.4
(LENDERS' AND (U1.00pm for (U1.00pm for (U1.00pm for
UR and UR and UR and
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FRONTING BANKS' U11.00am for U11.00am for U11.00am
PARTICIPATION) SN if Loan to SN if Loan to for SN if
be made on be made on Loan to be
Closing Date) Closing Date) made on
Closing
Date)
Agent notifies the Lenders of the Loan in U-3 U-1 U-3 U-3
accordance with Clause 5.4 (LENDERS' AND 3.00pm 3.00pm 3.00pm 3.00pm
FRONTING BANKS' PARTICIPATION)
(U2.00pm for (U2.00pm for UR (U2.00pm
UR and U UR and U for UR and
noon for SN if noon for SN if U noon for
Loan to be Loan to be SN if Loan
made on made on to be made
Closing Date) Closing Date) on Closing
Date)
Agent receives a notification from a U-3 U-1 U-3 U-3
Lender under Clause 6.2 (UNAVAILABILITY 5.00pm 5.00pm 5.00pm 5.00pm
OF A CURRENCY)
(Not (Not (Not
applicable if applicable if applicable if
Loan to be Loan to be Loan to be
made on made on made on
Closing Date) Closing Date) Closing
Date)
Agent gives notice in accordance with U-2 U U-2 U-2
Clause 6.2 (UNAVAILABILITY OF A CURRENCY) 9.30am 9.30am 9.30am 9.30am
(U2.00pm for (U2.00pm for UR (U2.00pm
UR and U and U for for UR and
noon for SN if noon for SN if U noon for
Loan to be Loan to be SN if Loan
made on made on to be made
Closing Date) Closing Date) on Closing
Date)
LIBOR or EURIBOR is fixed Quotation Day Quotation Day Quotation Quotation
as of 11:00 as of 11:00 Day as of Day as of
a.m. London a.m. 11:00 a.m. 11:00 a.m.
time in respect
of LIBOR and (as soon as (as soon as
as of 11:00 practicable on practicable
-213-
a.m Brussels U for UR and on U for UR
time in respect U noon for SN and U noon
of EURIBOR if Loan to be for SN if
made on Loan to be
(as soon as Closing Date) made on
practicable on Closing
U for UR and Date)
U noon for SN
if Loan to be
made on
Closing Date)
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
"UR" = Utilisation Request
SN = Selection Notice
-214-
PART II
LETTERS OF CREDIT AND BANK GUARANTEES
LETTERS OF CREDIT/BANK
GUARANTEES
Delivery of a duly completed Utilisation U-5
Request (Clause 5.1 (DELIVERY OF A
UTILISATION REQUEST) 9:30am
Agent notifies the Lenders and the relevant U-3
Fronting Bank of the Letter of Credit or
Bank Guarantee in accordance with Clause Noon
5.4 (LENDERS' AND FRONTING BANKS'
PARTICIPATION).
Delivery of written notice to the Agent U-4
requesting an extension to the Term of a
Letter of Credit or Bank Guarantee in 4:00pm
accordance with Clause 5.6 (RENEWAL OF A
LETTER OF CREDIT OR BANK GUARANTEE)
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
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SCHEDULE 11
FORM OF BANK GUARANTEE
To: [Beneficiary]
Date: [ ]
Dear Sirs
IRRECOVERABLE GUARANTEE NO. [ ]
1. In this letter:
"BORROWER" means [DETAILS].
"BUSINESS DAY" means a day (not being a Saturday, Sunday or public
holiday) on which banks and foreign exchange markets are open for
dealings in London.
"EXPIRY DATE" means [DETAILS].
"FACILITY" means [DETAILS].
"ISSUER" means [DETAILS OF FRONTING BANK].
"PAYMENT DATE" means the date for payment of a demand being [DETAILS -
MINIMUM FIVE] business days after the date of receipt of demand.
2. In consideration of your agreeing to make available the Facility the
Issuer irrevocably and unconditionally guarantees to you on receipt of
written demand, the payment and discharge by the Borrower of all amounts
payable or expressed to be payable to you pursuant to the Facility. This
guarantee is given subject as follows:
(a) any demand made hereunder shall be made in writing addressed
to the Issuer or its offices at [DETAILS] (Attention:
[DETAILS]) in the form provided in Appendix A;
(b) the maximum aggregate liability of the Issuer hereunder
(inclusive of all principal, interest, costs and expenses) is
[EURO/$ /L/other]; and
(c) no demand may be made hereunder after the Expiry Date and only
one demand may be made hereunder.
3. Any payment made hereunder shall be made on the Payment Date in
[CURRENCY] by payment to the account of the Beneficiary specified in the
demand.
4. This guarantee is not assignable or transferable in whole or in part.
5. This guarantee shall be governed by English law and the courts of
England shall have exclusive jurisdiction.
-216-
Yours faithfully
.................................
for and on behalf of
[NAME OF FRONTING BANK]
-217-
APPENDIX TO BANK GUARANTEE
[HEADED NOTEPAPER OF BENEFICIARY]
To: [ ]
From: [ ]
BANK GUARANTEE REF. NO. - (the "BANK GUARANTEE")
We refer to the Bank Guarantee. Terms defined in the Bank Guarantee and not
otherwise defined herein bear the same meaning herein.
We certify that:
(a) we have provided the Facility to the Borrower on the terms and
conditions approved by you at the time of issue of the Bank Guarantee;
(b) the terms of the Facility are the same as those prevailing at the time
of issue of the Bank Guarantee (or, to the extent that they are not, any
amendments thereto have been approved by you);
(c) an aggregate amount (the "PAYMENT AMOUNT") of - (comprising - of
principal and - of interest and/or other charges) fell due for payment
in - by - on - and remains due and unpaid at the date of this letter.
Accordingly, we hereby request payment under the Bank Guarantee of the Payment
Amount. Payment is to be made to our account (A/C No. -) with - at -.
Yours faithfully
.................................
for and on behalf of [THE BENEFICIARY]
-218-
SCHEDULE 12
FORM OF LETTER OF CREDIT
To: [Beneficiary]
Date: [ ]
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [ ]
This Letter of Credit is issued by [ ], (the "ISSUER") at the
request of [ ] in your favour on the following terms:
1. The Issuer shall not be obliged to make payments under this Letter of
Credit exceeding in aggregate the maximum amount of [ ]. Any payment
under this Letter of Credit shall be made in [CURRENCY] and shall reduce
the Issuer's liability to make payment under this Letter of Credit
accordingly.
2. This Letter of Credit shall expire at [ ] a.m./p.m., London time on [ ]
(the "EXPIRY DATE"). The Issuer will have no liability in respect of any
demand delivered after such time [and a demand not accompanied by the
information mentioned in paragraph 3(b) below shall not be validly
delivered].
3. Subject to paragraph 2 above, within five business days of receiving (a)
your demand on the Issuer [in the form set out in the Appendix to this
Letter of Credit] specifying the amount claimed under this Letter of
Credit and bearing an endorsement of the above Letter of Credit number
and (b) [DETAILS OF ANY OTHER DOCUMENTS REQUIRED FROM THE BENEFICIARY TO
BE INSERTED (INCLUDING A CERTIFICATE VERIFIED AS HAVING BEEN SIGNED BY
TWO AUTHORISED OFFICERS OF THE BENEFICIARY AUTHORISING DELIVERY OF THE
DEMAND)], at [DETAILS OF FRONTING BANK'S OFFICE TO BE INSERTED] the
Issuer agrees to pay to you in the currency specified in paragraph 1
above, subject to the maximum amount referred to in paragraph 1 above.
4. Your rights and the rights of the Issuer under this Letter of Credit may
not be assigned or transferred.
5. This Letter of Credit is subject to Uniform Customs and Practice for
Documentary Credits (International Chamber of Commerce, Publication No.
500 - 1993).
6. This Letter of Credit is governed by English law and the courts of
England shall have exclusive jurisdiction.
Yours faithfully
........................................
for and on behalf of
[NAME OF FRONTING BANK]
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SCHEDULE 13
MATERIAL COMPANIES AS AT SIGNING
▇▇▇▇▇▇ Griesheim GmbH
▇▇▇▇▇▇ Griesheim Industriegase GmbH
▇▇▇▇▇▇ UK Limited
▇▇▇▇▇▇ France ▇.▇.
▇▇▇▇▇▇ Griesheim Industries, Inc.
▇▇▇▇▇▇ Hungarogaz Kft
MG de Mexico S.A. de ▇.▇.
▇▇▇▇▇▇ Trinidad & Tobago Limited
▇▇▇▇▇▇ International GmbH
▇▇▇▇▇▇ Nederland B.V.
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SCHEDULE 14
FORM OF AUDITOR'S REPORT
PRIVATE AND CONFIDENTIAL
The Directors
▇▇▇▇▇▇ Griesheim GmbH ("MGG")
and
The directors
DIOGENES Vierte Vermogensverwaltungs Aktiengesellschaft ("NEWCO 2")
Dear Sirs
In accordance with the terms of our engagement letter dated ________, we have
reviewed the preparation of the compliance certificate (attached hereto and
initialled by us for the purposes of identification) (the "COMPLIANCE
CERTIFICATE") which is being provided pursuant to the
senior facilities
agreement dated o (the "FACILITIES AGREEMENT") made between, among others,
▇▇▇▇▇▇▇▇ Verwaltungsgesellschaft mbH, and the persons who become borrowers
pursuant to the provisions of the Facilities Agreement, the persons who become
guarantors pursuant to the provisions of the Facilities Agreement, ▇▇▇▇▇▇▇ Sachs
International as Global Co-ordinator, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and others as
Joint Lead Arrangers, the persons named therein as Lenders, the agent and the
security trustee.
RESPONSIBILITY
The compliance certificate (SEE DEFINITION ABOVE), as well as the accompanying
audited financial statements of the Newco 2 Group prepared in accordance with
International Accounting Standards, have been prepared by, and are the sole
responsibility of, the directors of Newco 2. Our responsibility is to report on
the results of our review.
A copy of the compliance certificate and the accompanying financial statements
is attached hereto and initialled by us for the purpose of identification.
BASIS OF OPINION
Our work included a review of the calculations of the financial covenants to
assess if they have been calculated properly in accordance with paragraphs 21.2
(b) and 22 of the Facilities Agreement and have been properly extracted from the
audited accounts, certain specified records of the company, and audited IAS
adjustment schedules.
We planned and performed our work so as to obtain all the information and
explanations which we considered necessary in order to provide us with
sufficient evidence to give reasonable assurance that the financial covenants
have been properly calculated on the basis specified in paragraphs 21.2 (b) and
22 of the Facilities Agreement, so far as matters material to their preparation
are concerned and the EBITDA and gross assets numbers for the purposes of Clause
23.30 (GUARANTOR GROUP AND SECURITY COVERAGE) of the Facilities Agreement and
paragraphs (b) and (c) of the definition of Material Companies in Clause 1.1 of
the Facilities Agreement have been properly calculated.
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These procedures did not constitute an audit of the financial statements, and
consequently we express no opinion as to whether the financial statements
present fairly the state of affairs of the Newco 2 Group as at ______________.
OPINION
In our opinion, the calculations in sections 2 and 3 of the compliance
certificate have been calculated in accordance with paragraphs 21.2 (b) and 22
of the Facilities Agreement. The Margins referred to in section 3 of the
compliance certificate have been correctly extracted from tables in paragraph
10.2 (a) and (b) of the Facilities Agreement on the basis of the information set
out in section 2.
On the basis that the Security Parties are [list of companies] and the
Guarantors are [list] we confirm that in our opinion the calculations in section
4 (a), (b), (c) and (d) of the compliance certificate have been calculated in
accordance with paragraph 22 of the Facilities Agreement.
In our opinion, the companies listed in section 4 (e) of the compliance
certificate are the Material Companies as defined in paragraphs (b) and (c) of
such definition of the Facilities Agreement.
RESTRICTION ON USE OF REPORT/GOVERNING LAW
This report is exclusively for the information of the addressees and for use
solely in connection with matters relating to paragraphs 21.2 (b), 22, 10.2 (a)
and (b), 23.30 of the Facilities Agreement and the definition of Material
Companies and is not to be copied, quoted or referred to, in whole or in part,
in any other connection without out prior written consent. For the avoidance of
any doubt, this report may be circulated to the Finance Parties (as defined in
the Facilities Agreement) in connection with these paragraphs of the Facilities
Agreement.
The terms of engagement for this report have been established by the directors
of Newco 2 and are based on the General Conditions of Assignment for
Wirtschaftsprufer and Wirtschaftsprufungsgesellschaften in the version dated,
July 1, 2000 ( a copy of which is attached hereto). We will not accept
responsibility to any other party to whom this report may be shown or who may
acquire a copy of the report.
This report is governed by and construed in accordance with the laws of the
Federal Republic of Germany. Place of Jurisdiction for any dispute arising out
to in connection with this letter shall be exclusively [Frankfurt am Main,
Germany].
Yours faithfully
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SCHEDULE 15
SECURITY PRINCIPLES
This Schedule sets out the principles upon which the type and extent of the
Security to be required from a proposed Additional Obligor is to be decided
upon.
1. INITIAL OBLIGORS
The Security to be provided by each of the Initial Obligors incorporated
in Germany, any state of the United States of America, England, France
and the Netherlands (each such country or state being a "KEY
JURISDICTION") and any Initial Obligor incorporated in Austria or
Luxembourg has already been agreed upon and is to be as follows pursuant
to Security Documents which are in agreed form:
(a) GERMANY
Each of the Initial Obligors incorporated in Germany will
provide:
(i) pledges by its direct Holding Company or Holding
Companies over all of the shares in that Initial
Obligor by way of first ranking share pledges and (in
favour of the Mezzanine Finance Parties) second
ranking share pledges;
(ii) an assignment of its receivables pursuant to a Global
Assignment Agreement;
(iii) a security transfer of its intellectual property
rights pursuant to a Security Transfer of IP Rights;
(iv) security over its bank accounts by way of first
ranking account pledges and (in favour of the
Mezzanine Finance Parties) second ranking account
pledges (it being noted that such pledge will rank
behind any pledge in favour of the German account
bank under its General Business Conditions and that
the pledgor has the obligation to use its reasonable
endeavours to get the account bank to waive or
subordinate its pledge);
(v) security over its land pursuant to a notarial deed
(creating land charges) and a Security Purpose
Agreement (relating to such land charges);
(vi) security by way of transfer of collateral of its
stock, machinery and inventory pursuant to a Transfer
of Moveables; and
(vii) in the case of MGG, security (governed by English
law) will be provided over a bank account opened by
it with The Chase Manhattan Bank in London which is
identified as a Prepayment Escrow Account and
pursuant to which no amounts may be withdrawn other
than as provided in Clause 9 (REPAYMENT AND
CANCELLATION).
(b) FRANCE
Each of the Initial Obligors incorporated in France will
provide:
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(i) pledges by its direct Holding Company or Holding
Companies over all of the shares in that Initial
Obligor;
(ii) a pledge over its bank accounts pursuant to a Bank
Account Pledge.
(c) THE NETHERLANDS
Each of the Initial Obligors incorporated in The Netherlands
will provide:
(i) pledges by its direct Holding Company or Holding
Companies over all of the shares in that Initial
Obligor;
(ii) a pledge of its receivables;
(iii) a pledge over its stock and assets;
(iv) a pledge of its bank accounts;
(v) a pledge of its intellectual property rights;
(vi) (in the case of a Treasury Borrower incorporated in
The Netherlands, in addition to the above) security
(governed by English law) over its Intra Group Loans,
save that if it is a Treasury Borrower it will only provide
the security referred to in paragraphs (i), (iv) and (vi)
above.
(d) UNITED STATES
Each of the Initial Obligors incorporated in a state of the
United States of America will provide a pledge and security
agreement creating security over all of its assets (other than
real property) and a pledge by its direct Holding Company or
Holding Companies over all of the shares in that Initial
Obligor.
(e) ENGLAND
Each of the Initial Obligors incorporated in England will
provide a debenture creating fixed and floating charges over
all of its assets and a charge by its direct Holding Company
or Holding Companies over all of the shares in that Initial
Obligor.
(f) AUSTRIA
Each of the Initial Obligors incorporated in Austria will
provide pledges by its direct Holding Company or Holding
Companies over all of the shares in that Initial Obligor, so
that MGG will pledge all of its shares in ▇▇▇▇▇▇ Austria GmbH.
(g) LUXEMBOURG
If a Treasury Borrower is incorporated in Luxembourg it will
provide:
(i) a pledge by its direct Holding Company over all the
shares in such Treasury Borrower;
(ii) a pledge of its receivables;
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(iii) an account charge over its bank accounts; and
(iv) in addition to or instead of (ii), security (governed
by English law) over its Intra-Group Loans.
(h) SECURITY OVER SHARES HELD BY INITIAL OBLIGORS
The relevant Initial Obligors listed below shall also provide
pledges over all of the shares/partnership interests in the
companies indicated below.
---------------------------------------------------------------------------------------------------
INITIAL OBLIGOR COMPANY WHOSE SHARES JURISDICTION OF INCORPORATION
PLEDGED AND REGISTERED NUMBER (OR
EQUIVALENT) OF COMPANY WHOSE
SHARES PLEDGED
---------------------------------------------------------------------------------------------------
MGG ▇▇▇▇▇▇ AGS GmbH Germany, registered in the
HANDELSREGISTER (commercial
register) of the AMTSGERICHT (local
court of Hanau under, HRB6265
---------------------------------------------------------------------------------------------------
MGG ▇▇▇▇▇▇ Polska Sp. zo.o. Poland
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▇▇▇▇▇▇ Nederland B.V. ▇▇▇▇▇▇ Belgium N.V. Belgium, BE 402.166.453
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MGG ▇▇▇▇▇▇ Hungarogaz Kft Hungary, Cg. ▇▇-▇▇-▇▇▇▇▇▇
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2. OTHER ADDITIONAL OBLIGORS
(a) The Security to be provided by any Additional Obligor which is
not an Initial Obligor but which is incorporated in a Key
Jurisdiction shall consist of the same type and extent of
Security as provided by an Initial Obligor incorporated in
such Key Jurisdiction (to the extent relevant to such
Additional Obligor) (including, for the avoidance of doubt,
pledges from that Additional Obligor's Holding Company or
Holding Companies over all of the shares in that Additional
Obligor) and shall as far as possible be provided pursuant to
a Security Document or Security Documents on the same terms as
those provided by such Initial Obligor.
(b) In regard to any Additional Obligor not falling within
paragraphs 1 or 2(a) above, the presumption shall be that the
only Security to be provided by such Additional Obligor is a
pledge by its Holding Company or Holding Companies over all of
the shares in that Additional Obligor. If the Agent determines
(acting reasonably) that Security over all or any of its other
assets can be provided at relatively low cost (in terms of
legal fees and other costs and expenses associated with any
such Security) which would provide some significant value in
terms of Security to the Finance Parties then, subject as
provided below, the provision of such Security shall be a
condition to such Additional Obligor becoming an Additional
Obligor if the Agent (acting on the instructions of the
Majority Lenders) so requires.
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3. DEBTCO
The security to be provided by Debtco is specified in Part III of
Schedule 2 (CONDITIONS PRECEDENT).
4. GENERAL PRINCIPLES
(a) In regard to any proposed Security to be provided by any
Additional Obligor, due regard shall be had to:
(i) any risk that the directors of a company being asked
to provide Security could be held to be in breach of
applicable company or criminal law in providing such
Security;
(ii) the practicality and costs involved in taking any
such Security; and
(iii) the value of the proposed Security to the Finance
Parties in light of the whole of the Security already
provided to them at such time.
(b) Any Security over any assets of an Additional Obligor shall
(to the extent legally possible) secure the obligations of
such Additional Obligor under the Finance Documents and the
Mezzanine Finance Documents and shall (to the extent legally
possible) create first priority Security over such assets. All
share pledge Security shall create first priority Security
over the shares pledged.
(c) Save where it is inappropriate under applicable law or in
relation to the specific security being provided, all Security
shall only be enforceable upon the occurrence of an
Enforcement Event which is continuing. An Enforcement Event is
any of the events listed in paragraphs (a), (b), (c) or (e) of
Clause 24.15 (ACCELERATION) of this Agreement or paragraphs
(a), (b) or (c) of Clause 22.14 of the Mezzanine Facility
Agreement.
(d) Representations will only relate to the creation of the
Security, and undertakings additional to those in this
Agreement will only be included to the extent necessary under
local law to create Security (such as a fixed charge) where
such Undertakings will not interfere with the normal running
of the business.
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SCHEDULE 16
DISPOSAL PLAN
This Schedule sets out below the members of the MGG Group, the Unconsolidated
Subsidiaries of MGG and the minority interests and assets of the MGG Group and
such Unconsolidated Subsidiaries which are intended to be sold (either by way of
share sale and/or by way of asset sale) pursuant to the disposal programme
intended to be implemented after the Closing Date.
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COUNTRY COMPANY/ASSET MGG
% SHAREHOLDING/% OF ASSET OWNED
(DIRECT OR INDIRECT)
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CONSOLIDATED SUBSIDIARIES OF MGG
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Argentina ▇▇▇▇▇▇ Argentina S.A. 99.63%
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Australia ▇▇▇▇▇▇ Australia Pty. Ltd. 100%
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Australia Kingstream Steel Limited 3.58%
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Brazil ▇▇▇▇▇▇ Griesheim do Brasil Ltda. 99.99%
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US/Canada The Canadian Healthcare and US CO2 100%
divisions of the MGG Group
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China Sichuan ▇▇▇▇▇▇ Gas Products Co. Ltd. 100%
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China Hunan Xianggang ▇▇▇▇▇▇ Gas Products 55%
Co. Ltd.
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China ▇▇▇▇▇▇ Sunshine (Ningbo) Gas 70%
Products
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China Yunnan ▇▇▇▇▇▇ Gas Products Co. Ltd. 100%
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China ▇▇▇▇▇▇ North China Industrial Gas 100%
Co., Ltd.
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Germany ▇▇▇▇▇▇ Medical GmbH 100%
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Guatemala ▇▇▇▇▇▇ de Centroamerica S.A. 50%
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Guatemala Carbox S.A. 25%
------------------------------------- ------------------------------------- -------------------------------------
Guatemala Servigil S.A. 100%
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US MG Generon, Inc. 100%
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Indonesia PT Aneka Gas Industri 90%
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China SMC Asia Gas Systems Company Limited 33.33%
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China Ningbo ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Carbon 60%
Dioxide Co. Ltd.
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Austria/Germany ▇▇▇▇▇▇ Medical GmbH 100%
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Korea ▇▇▇▇▇▇ Korea Ltd. 75%
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Korea ▇▇▇▇▇▇ ▇▇▇▇▇ Sin Gas Limited 50%
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Malaysia ▇▇▇▇▇▇ Malaysia Sdn Bhd 100%
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Malaysia Secomex Manufacturing (M) Sdn Bhd 49%
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Mexico ▇▇▇▇▇▇ Griesheim de Mexico S.A. de 99.99%
C.V.
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Peru ▇▇▇▇▇▇ Gases S.A. 91.90%
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Peru ▇▇▇▇▇▇ Gases del Peru S.A.C. 99.99%
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South Africa FedGas (Pty) Ltd. 100%
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Taiwan ▇▇▇▇▇▇ Taiwan Co. Ltd. 100%
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Taiwan ▇▇▇▇▇▇ TPO Enterprise Co. Ltd. 50%
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Trinidad & Tobago ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Tobago Limited 99.99%
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Turkey ▇▇▇▇▇▇ Technik Gazlar Sanayi ve 80%
Ticaret Sti
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Turkey ▇▇▇▇▇▇ ▇▇▇▇▇▇ Holding AS 55%
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US MG Generon, Inc. 100%
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Venezuela ▇▇▇▇▇▇ Gases S.A. 100%
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Zimbabwe ▇▇▇▇▇▇ Zimbabwe (Private) Limited 100%
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NON-CONSOLIDATED COMPANIES
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China Yunnan ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Gas Products 60%
Co. Ltd.
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China ▇▇▇▇▇▇ International Trading 100%
(Shanghai) Co. Ltd.
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Egypt ▇▇▇▇▇▇ Egypt S.A.E 49.49%
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Egypt ▇▇▇▇▇▇ Gases Dekheila Co S.A.E 46.32%
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Honduras ▇▇▇▇▇▇ Honduras S.A. de C.V. 50%
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India Bombay Oxygen Corporation Limited 50% plus 1 share
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India Goyal MG Gases Ltd. 48.955%
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Indonesia PT ▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Gases 65%
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Nicaragua ▇▇▇▇▇▇ de Nicaragua S.A. 50%
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Sri Lanka ▇▇▇▇▇▇ Industrial Gases (Private) 51%
Limited
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Thailand ▇▇▇▇▇▇ Industrial Gases Thailand 74.99%
Co. Ltd.
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Trinidad & Tobago ▇▇▇▇ and Massy Gas Products Ltd. 42.71%
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Turkey ▇▇▇▇▇▇ Aligaz Holding AS 50%
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Vietnam ▇▇▇▇▇▇ Haiphong Industrial Gases 67%
Co. Ltd.
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Egypt ▇▇▇▇▇▇ Gases Suez S.A.E. 45%
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Vietnam ▇▇▇▇▇▇ Vietnam Industrial Gases Co. 100%
Ltd.
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SCHEDULE 17
CENTRAL AMERICAN ENTITIES
CENTRAL AMERICAN ENTITIES RELEVANT JURISDICTION MGG GROUP
SHAREHOLDING
▇▇▇▇▇▇ Griesheim de Mexico S.A. de C.V. Mexico 99.99%
▇▇▇▇▇▇ de El ▇▇▇▇▇▇▇▇ S.A. de C.V. El Salvador 50.00%
▇▇▇▇▇▇ de Centroamerica S.A. Guatemala 50.00%
Carbox S.A. Guatemala 50.00%
Servigil S.A. Guatemala 100%
▇▇▇▇▇▇ de Nicaragua S.A. Nicaragua 50.00%
Carbox de Nicaragua S.A. Nicaragua 25.00%
▇▇▇▇▇▇ de Honduras S.A. de C.V. Honduras 50.00%
Compania de Productos Atmosfericos S.A. de C.V. Honduras 50.00%
Gases Industriales S.A. de C.V. Honduras 50.00%
Coxgas S.A. de C.V. Honduras 50.00%
Carbox S.A. Honduras Honduras 50.00%
Greenbelt Holdings Ltd. British Virgin Islands 100.00%
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SIGNATURES
THE COMPANY
▇▇▇▇▇▇▇▇ VERWALTUNGSGESELLSCHAFT MBH
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Address: c/o Allianz Capital Partners GmbH
▇▇▇▇▇▇▇▇▇▇▇▇. ▇-▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
and
c/o Goldman ▇▇▇▇▇ International
Peterborough Court
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Ulrika Werdelin
THE ARRANGERS
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
By: ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
BAYERISCHE HYPO- UND VEREINSBANK AG
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CHRISTIAN FEDERSPIELER
▇.▇. ▇▇▇▇▇▇ PLC
By: ▇▇▇▇▇ ▇▇
THE ROYAL BANK OF SCOTLAND PLC
By: GERD BIEDING
▇▇▇▇▇ ▇▇▇▇▇▇
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THE AGENT
CHASE MANHATTAN INTERNATIONAL LIMITED
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
Fax: ▇▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
THE SECURITY TRUSTEE
CHASE MANHATTAN INTERNATIONAL LIMITED
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
Fax: ▇▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
THE LENDERS
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS, L.P.
By: ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
Facility Office: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
BAYERISCHE HYPO- UND VEREINSBANK AG
By: CHRISTIAN FEDERSPIELER
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facility Office: Niederlassung Frankfurt
Mainzer ▇▇▇▇▇▇▇. ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇
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THE CHASE MANHATTAN BANK
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facility Office: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
THE ROYAL BANK OF SCOTLAND PLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇
GERD BIEDING
Facility Office: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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