AGREEMENT DATED 6 AUGUST, 2010 MULTICURRENCY REVOLVING CREDIT FACILITY FOR ARRANGED BY COMMERZBANK Aktiengesellschaft, pobočka zahraničnej banky, Bratislava, ING Bank N.V., pobočka zahraničnej banky, and Slovenská sporiteľňa, a.s. - as Mandated Lead...

EXECUTION COPY

 

 

 

 

 

(1)	U. S. Steel Košice, s.r.o. with its registered seat at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, registered in the Commercial Register of District Court Košice I, insert No. 11711/V, section Sro, company identification number (IČO): 36 199 222 as borrower (the Company);

 

(2)

(a)

COMMERZBANK Aktiengesellschaft, with its registered seat at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Germany, entered in the Commercial Register at the District Court Frankfurt am Main under Entry HR B 32000, acting through its organisational unit COMMERZBANK Aktiengesellschaft, pobočka zahraničnej banky, Bratislava, with its seat at Bratislava 1, ▇▇▇▇▇▇ ▇▇/▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇, Ident. No.: 30847737, entered in the Commercial Register of the District Court Bratislava I, Sec. Po, Insert No. 1121/B;

 

(b)

ING Bank N.V., with its registered seat at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a company limited by shares, registered in the Trade Register of Chamber of Commerce and Industry for Amsterdam under file No. 33031431 acting through its organisational unit ING Bank N.V., pobočka zahraničnej banky, ▇▇▇▇▇▇▇▇▇▇ ▇/▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Identification No. 30 844 754, registered in the Commercial register maintained by the District Court of Bratislava I, in Section Po, inserted file No. 130/B; and

 

(c)

Slovenská sporiteľňa, a.s., with its registered seat at ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Identification No. 00 151 653, registered in the Commercial register maintained by the District Court of Bratislava I, in Section Sa, insert No. 601/B

 

as mandated lead arrangers (in this capacity the Mandated Lead Arrangers);

 

(3)

(a)

Citibank Europe plc, with its registered seat at North Wall ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ of Ireland, registered with the Companies Registration Office under No. 132781, acting through its organisational unit Citibank Europe plc, pobočka zahraničnej banky, with its registered office at ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Identification No. 36 861 260, registered in the Commercial register maintained by the District Court of Bratislava I, in Section Po, insert No. 1662/B; and

 

(b)

HSBC Bank plc, with its registered office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of Great Britain and Northern Ireland, registered by the Companies House under number 14259 and acting through its organisational unit HSBC Bank plc, pobočka zahraničnej banky, with its registered office at Europeum Business Center, ▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, Identification number (IČO): 35 929 979, registered in the Commercial Register kept by the District Court Bratislava I, section: Po, insert No.: 1258/B

 

 

(4)	THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Parties) as original lenders (the Original Lenders); and

 

 

(5)

ING Bank N.V., with its registered seat at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a company limited by shares, registered in the Trade Register of Chamber of Commerce and Industry for Amsterdam under file No. 33031431 acting through its organisational unit ING Bank N.V., pobočka zahraničnej banky, ▇▇▇▇▇▇▇▇▇▇ ▇/▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Identification No. 30 844 754, registered in the Commercial register maintained by the District Court of Bratislava I, in Section Po, inserted file No. 130/B as the agent of the Finance Parties (in this capacity the Facility Agent).

 

 

1.	INTERPRETATION

 

1.1	Definitions

 

 

 

 

 

 

 

 

(a)

if on that day a payment in or a purchase of a currency (other than euro) is to be made, the principal financial centre of the country of that currency; or

 

(b)

if on that day a payment in or a purchase of euro is to be made, which is also a TARGET Day.

 

 

 

 

 

(a)

for an Original Lender, the amount set opposite its name in Schedule 1 (Original Parties) under the heading "Commitments" and the amount of any other Commitment it acquires; and

 

(b)

for any other Lender, the amount of any Commitment it acquires,

 

 

 

 

 

(a)

an Event of Default; or

 

(b)

an event or circumstance which, with the giving of notice, lapse of time or fulfilment of any other applicable condition (or any combination of the foregoing) set out in Clause 19 (Default), would constitute an Event of Default.

 

 

(a)

that has failed to make its share in a Loan available within five Business Days from the Utilisation Date of that Loan or has notified the Facility Agent that it will not make its share in a Loan available by the Utilisation Date of that Loan, in accordance with Clause 5.3 (Advance of Loan); or

 

(b)

that is the subject of bankruptcy, insolvency, or similar proceedings,

 

 

(i)

the Lender's failure to pay is caused by:

 

(A)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, the Lender; or

 

(B)

the occurrence of any other event that results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of the Lender preventing that Lender:

 

I.

from performing its payment obligations under the Finance Documents; or

 

II.

from communicating with other Parties in accordance with the terms of the Finance Documents,

 

 

 

(ii)

the Lender is disputing in good faith whether it is legally obliged to make the payment in question.

 

 

(a)

that:

 

(i)

is rated by any of: (A) Moody’s Investors Service Limited; (B) Standard & Poor’s Rating Services; (C) Fitch Ratings Ltd; or (D) other internationally recognised rating agency; and

 

 

 

 

(b)

is a Subsidiary of an entity, which is subject to bankruptcy, insolvency, or similar proceedings.

 

 

 

 

 

(a)

maintained by the Company or any ERISA Affiliate; or

 

(b)

to which the Company or any ERISA Affiliate is required to make any payment or contribution.

 

 

(c)

an event specified as such in section 4043 of ERISA or any related regulation, other than an event in relation to which the requirement to give notice of that event is waived by any regulation; or

 

(d)

a failure to meet the minimum funding standard under section 412 of the Code or section 302 of ERISA, whether or not there has been any waiver of notice or waiver of the minimum funding standard under section 412 of the Code.

 

 

 

(a)

the applicable Screen Rate; or

 

(b)

if no Screen Rate is available for the Term of that Loan or overdue amount, the arithmetic mean (rounded upward to four decimal places) of the rates as supplied to the Facility Agent at its request quoted by the Reference Banks to leading banks in the European interbank market,

 

 

 

 

 

 

 

 

 

 

 

(a)

on or before the date it becomes a Lender; or

 

(b)

by not less than five Business Days' notice,

 

 

 

 

 

(a)

this Agreement;

 

(b)

a Fee Letter;

 

(c)

a Transfer Certificate; or

 

(d)

any other document designated as such by the Facility Agent and the Company.

 

 

 

(a)

money borrowed;

 

 

(b)

liabilities under or in respect of any acceptance or acceptance credit;

 

(c)

any notes, bonds, debentures, debenture stock, loan stock or other debt securities offered, issued or distributed whether by way of public offer, private placing, acquisition consideration or otherwise and whether issued for cash or in whole or in part for a consideration other than cash;

 

(d)

any interest rate and/or currency swap, forward foreign exchange transaction, financial or commodity futures transaction, commodity swap or other derivative transaction (and, when calculating the value of any of the foregoing transactions, only the net amount of the marked to market value shall be taken into account, to the extent such netting is permitted);

 

(e)

liabilities pursuant to any lease which are capitalised in accordance with USGAAP; or

 

(f)

liabilities under any guarantee, indemnity or other assurance against financial loss given in relation to any of the foregoing.

 

 

 

 

 

 

(a)

an additional or increased cost;

 

(b)

a reduction in the rate of return from a Facility or on a Finance Party's (or its Holding Company's) overall capital; or

 

(c)

a reduction of an amount due and payable under any Finance Document,

 

 

 

 

 

 

(a)

an Original Lender; or

 

 

(b)

any person that becomes a Lender after the date of this Agreement.

 

 

(a)

the applicable Screen Rate; or

 

(b)

if no Screen Rate is available for US Dollars or Canadian Dollars (as applicable) or the Term of that Loan or overdue amount, the arithmetic mean (rounded upward to four decimal places) of the rates, as supplied to the Facility Agent at its request, quoted by the Reference Banks to leading banks in the London interbank market,

 

 

 

 

(a)

whose share in the outstanding Loans and whose undrawn Commitments then aggregate 662/3 per cent. or more of the aggregate of all the outstanding Loans and the undrawn Commitments of all the Lenders;

 

(b)

if there is no Loan then outstanding, whose undrawn Commitments then aggregate 662/3 per cent. or more of the Total Commitments; or

 

(c)

if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated 662/3 per cent. or more of the Total Commitments immediately before the reduction.

 

 

(a)

any banking supervision or other costs imposed by the Bank of England or the United Kingdom Financial Services Authority; and

 

(b)

any other applicable regulatory or central bank requirements relating to any Loan, including any reserve asset requirements of the European Central Bank or the Central Bank.

 

 

 

 

 

 

 

 

 

(a)

disposals of Assets in the ordinary course of trading at arms' length;

 

(b)

disposals on normal commercial terms of obsolete Assets or Assets no longer used or useful in the Company’s business;

 

(c)

payment of cash as consideration for the acquisition of any Asset on normal commercial terms;

 

(d)

temporary application of funds not immediately required in the Company’s business for the purchase of investments or the realisation of such investments;

 

(e)

exchange of Assets for other assets of a similar nature and value, or the sale of Assets on normal commercial terms for cash that is payable in full on completion of the sale and is to be, and is, applied toward the purchase of similar Assets within six months;

 

(f)

disposals of Assets located outside the Republic;

 

(g)

any disposal that the Facility Agent agrees in writing is a Permitted Disposal; and

 

(h)

any disposal approved in writing by the Majority Lenders.

 

 

(a)

a merger of any Subsidiary of the Company into the Company, such that the Company acquires all the assets and liabilities of such Subsidiary and the Company is the surviving legal entity, provided the Company's post-merger consolidated net worth equals or exceeds the immediately preceding pre-merger consolidated net worth of the Company and that Subsidiary as determined on the basis of accounting principles and practices consistent with the preparation of the Latest Accounts;

 

(b)

any other merger or corporate restructuring approved in advance in writing by the Facility Agent (acting on the instructions of the Majority Lenders);

 

(c)

a merger of any Subsidiary of U. S. Steel into the Company, such that the Company acquires all the assets and liabilities of such Subsidiary and the Company is the surviving legal entity, provided the Company's post-merger consolidated net worth equals or exceeds the immediately preceding pre-merger consolidated net worth of the Company and that Subsidiary as determined on the basis of accounting principles and practices consistent with the preparation of the Latest Accounts.

 

 

(a)

Security Interests existing on the date of this Agreement and disclosed to the Facility Agent in writing;

 

(b)

any Security Interests incurred in connection with the acquisition of any asset, the assumption of any Security Interest previously existing on such acquired asset or any Security Interest existing on any asset of any person when it becomes a Subsidiary of the Company in each case provided that the Indebtedness secured by such Security Interest does not exceed the fair market value of that asset as at the date of that acquisition;

 

 

(c)

easements, rights-of-way, minor defects or irregularities in title and other similar encumbrances on real property having no material adverse effect on the then current use or value of such real property, or on the then current conduct of the business of any member of the Group;

 

(d)

unexercised liens for taxes not being delinquent or contested in good faith by appropriate proceedings and for which reserves, adequate under USGAAP, are being maintained;

 

(e)

any Security Interest on equipment of the Company arising solely under leases of such equipment that, in accordance with USGAAP, are required to be capitalised, provided that any such Security Interest extends to no other property and secures no other Indebtedness and the Indebtedness secured by any such Security Interest does not exceed the fair market value of such equipment;

 

(f)

purchase money Security Interests on equipment acquired by the Company after the date hereof incurred simultaneously with or within 180 days after the completion of installation thereof solely to secure payment of all or part of the purchase price thereof provided that each such Security Interest secures no other Indebtedness and extends to no other property and the Indebtedness secured by any such Security Interest does not exceed the fair market value of such equipment;

 

(g)

liens arising solely by operation of law (or by an agreement evidencing the same) in the ordinary course of Company's business in respect of Indebtedness that either: (i) has been due for less than 90 days; or (ii) is being contested in good faith by appropriate means and for which reserves, adequate under USGAAP, are being maintained;

 

(h)

Security Interests arising out of title retention provisions in a supplier's standard conditions of supply of goods acquired by Company in the ordinary course of its business;

 

(i)

any Security Interest approved by the Facility Agent with the approval of the Majority Lenders;

 

(j)

liens in favour of financial institutions arising from documentary letters of credit in the ordinary course of business; and

 

(k)

any renewal of or substitution for any Security Interest permitted under any preceding paragraph; and

 

(l)

liens arising in the ordinary course of business in connection with: (i) the performance of bids, trade contracts, (to the extent not covered by sub-clause (b) of this definition), leases (to the extent a lease constitutes a finance lease and not an operating lease), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature; (ii) deposit accounts; and (iii) deposits made in the ordinary course of business to cash collateralized letters of credit, provided that the aggregate book value of Assets to which the liens described in this Subclause (l) are attached does not exceed euro 50,000,000 or its equivalent at any time; provided, however, the maximum amount under this sub-clause (l) does not apply to cash deposits that are subject to any bank's general right of set-off but does apply in situations where a specific security agreement exists, including, without limitation, any specific security interest providing a creditor with the treatment of a secured creditor with a right to separate satisfaction of its claim under the Slovak Act No. 7/2005 Coll., on bankruptcy and restructuring (as amended) or any similar right to separate satisfaction in case of bankruptcy or similar proceedings under any applicable laws.

 

 

 

(a)

the applicable Screen Rate; or

 

(b)

if no Screen Rate is available for Czech Koruna or the Term of that Loan or overdue amount, the arithmetic mean (rounded upward to four decimal places) of the rates, as supplied to the Facility Agent at its request, quoted by the Reference Banks to leading banks in the Prague interbank market,

 

 

 

(a)

for the purpose of determining a Lender's share in a utilisation of the Facility, the proportion which its Commitment bears to the Total Commitments; and

 

(b)

for any other purpose on a particular date:

 

(i)

the proportion which a Lender's share of the Loans (if any) bears to all the Loans;

 

(ii)

if there is no Loan outstanding on that date, the proportion which its Commitment bears to the Total Commitments on that date; or

 

(iii)

if the Total Commitments have been cancelled, the proportion which its Commitment bore to the Total Commitments immediately before being cancelled.

 

 

(a)

the second Business Day before the first day of a Term for a Loan denominated in any currency other than euro; or

 

(b)

the second TARGET Day before the first day of a Term for a Loan denominated in euro,

 

 

 

 

 

 

 

 

 

(a)

to be made on the same day that a maturing Loan is due to be repaid;

 

(b)

the aggregate amount of which is equal to or less than the maturing Loan;

 

(c)

in the same currency as the maturing Loan; and

 

(d)

to be made for the purpose of refinancing a maturing Loan.

 

 

(a)

for LIBOR, the London Interbank Offered Rate as displayed on Reuters page LIBOR01;

 

(b)

for EURIBOR, the Euro Interbank Offered Rate as displayed on Reuters page LIBOR01;

 

(c)

for PRIBOR, the Prague Interbank Offered Rate as displayed on Reuters page PRIBOR01;

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1.2	Construction

 

(a)	In this Agreement, unless the contrary intention appears, a reference to:

 

(i)

an amendment includes a supplement, novation, restatement or re-enactment and amended will be construed accordingly;

 

(ii)

assets means assets as defined in the Latest Accounts;

 

(iii)

an authorisation includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration or notarisation;

 

(iv)

disposal means a sale, transfer, grant, lease or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly;

 

(v)

indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money;

 

(vi)

know your customer requirements are the identification checks that a Finance Party requests in order to meet its obligations under any applicable law or regulation to identify a person who is (or is to become) its customer;

 

 

(vii)

a person includes any individual, company, corporation, unincorporated association or body (including without limitation a partnership, trust, joint venture or consortium), government, state, agency, organisation or other entity whether or not having separate legal personality;

 

(viii)

a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which any person to which it applies is accustomed to comply) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

 

(ix)

a currency is a reference to the lawful currency for the time being of the relevant country;

 

(x)

a Default being outstanding means that it has not been remedied or waived;

 

(xi)

a provision of law is a reference to that provision as extended, applied, amended or re-enacted and includes any subordinate legislation;

 

(xii)

a Clause, a Subclause or a Schedule is a reference to a clause or subclause of, or a schedule to, this Agreement;

 

(xiii)

a Party or any other person includes its successors in title, permitted assigns and permitted transferees;

 

(xiv)

a Finance Document or another document is a reference to that Finance Document or other document as amended;

 

(xv)

the word “will” shall be construed to have the same meaning and effect as the word “shall”; and

 

(xvi)

a time of day is a reference to Central European time (i.e. CET or CEST, as applicable in the given time of the year).

 

(b)	Unless the contrary intention appears, a reference to a month is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:

 

(i)

if the numerically corresponding day is not a Business Day, the period will end on the next Business Day in that month (if there is one) or the preceding Business Day (if there is not);

 

(ii)

if there is no numerically corresponding day in that month, that period will end on the last Business Day in that month; and

 

(iii)

notwithstanding sub-paragraph (i) of this Clause 1.2(b), a period which commences on the last Business Day of a month will end on the last Business Day in the next month or the calendar month in which it is to end, as appropriate.

 

(c)

Unless expressly provided to the contrary in a Finance Document, a person who is not a party to a Finance Document may not enforce any of its terms under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ and, notwithstanding any term of any Finance Document, no consent of any third party is required for any amendment (including, without limitation, any release or compromise of any liability) or termination of any Finance Document.

 

 

(d)	Unless the contrary intention appears:

 

(i)

a reference to a Party will not include that Party if it has ceased to be a Party under this Agreement;

 

(ii)

a word or expression used in any other Finance Document or in any notice given in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement;

 

(iii)

if there is an inconsistency between this Agreement and any other Finance Document, this Agreement will prevail;

 

(iv)

any non-payment obligations of the Company under the Finance Documents remain in force for so long as any payment obligation of the Company is or may be outstanding under the Finance Documents; and

 

(v)

an accounting term used in this Agreement is to be construed in accordance with USGAAP.

 

(e)	The headings in this Agreement do not affect its interpretation.

 

1.3	Slovak terms

 

 

(a)

a novation includes privatívna novácia and kumulatívna novácia;

 

(b)

a Security Interest includes záložné právo, zádržné právo, zabezpečovací prevod práva, and zabezpečovacie postúpenie pohľadávky;

 

(c)

a bankruptcy, insolvency or administration includes konkurzné konanie, konkurz, reštrukturalizačné konanie, reštrukturalizácia, and nútená správa;

 

(d)

being bankrupt or insolvent includes being v úpadku, predlžený, platobne neschopný, v konkurze, v reštrukturalizácii, and v nútenej správe;

 

(e)

an expropriation, attachment, sequestration, distress, execution or analogous process includes vyvlastnenie, exekúcia and výkon rozhodnutia;

 

(f)

winding up, administration or dissolution includes likvidácia, zrušenie s likvidáciou, zrušenie bez likvidácie bez právneho nástupcu, konkurzné konanie, konkurz, reštrukturalizačné konanie, reštrukturalizácia, and nútená správa;

 

(g)

a receiver, administrator, administrative receiver, compulsory manager or similar officer includes likvidátor, konkurzný správca (including predbežný správca), reštrukturalizačný správca, nútený správca, and súdny exekútor;

 

(h)

a moratorium includes reštrukturalizačné konanie and reštrukturalizácia; and

 

(i)

constitutional documents includes spoločenská zmluva, zakladateľská listina, zakladateľská zmluva, zriaďovacia listina, štatút, and stanovy.

 

 

2.

FACILITY

 

2.1

Facility

 

 

2.2	Nature of a Finance Party's rights and obligations

 

 

(a)

the obligations of a Finance Party under the Finance Documents are several;

 

(b)

failure by a Finance Party to perform its obligations does not affect the obligations of any other person under the Finance Documents;

 

(c)

no Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents;

 

(d)

the rights of a Finance Party under the Finance Documents are separate and independent rights;

 

(e)

a Finance Party may, except as otherwise stated in the Finance Documents, separately enforce those rights; and

 

(f)

a debt arising under the Finance Documents to a Finance Party is a separate and independent debt.

 

3.

PURPOSE

 

3.1

Loans

 

 

3.2	No obligation to monitor

 

 

4.	CONDITIONS PRECEDENT

 

4.1	Conditions precedent documents

 

 

4.2	Further conditions precedent

 

(a)	The first Request may not be given:

 

(i)

if there are any borrowings under the Existing Facility A outstanding or to be outstanding on both the date of the Request and the Utilisation Date, until such outstanding borrowings are repaid or prepaid in whole by the Company on or before the Utilisation Date in accordance with the terms of the Existing Facility Agreement A; and

 

 

(ii)

if there are any amounts of any commitments of the lenders under the Existing Facility A unutilised on both the date of the Request and the Utilisation Date, until such unutilised amounts of such commitments are irrevocably cancelled in whole by the Company on or before the Utilisation Date in accordance with the terms of the Existing Facility Agreement A.

 

(b)	The obligations of each Lender to participate in any Loan are subject to the further conditions precedent that on both the date of the Request and the Utilisation Date for that Loan:

 

(i)

the Repeating Representations are correct in all material respects; and

 

(ii)

no Default or, in the case of a Rollover Loan, no Event of Default is outstanding or would result from the Loan.

 

4.3

Drawstop

 

 

4.4	Maximum number of Loans

 

 

5.	UTILISATION

 

5.1	Giving of Requests

 

(a)	The Company may borrow a Loan by giving to the Facility Agent a duly completed Request.

 

(b)	Unless the Facility Agent otherwise agrees, the latest time for receipt by the Facility Agent of a duly completed Request is 11.00 a.m. one Business Day before the Rate Fixing Day for the proposed borrowing.

 

(c)	Each Request is irrevocable unless otherwise agreed by the Facility Agent upon the approval of the Majority Lenders.

 

5.2	Completion of Requests

 

 

(a)

the Utilisation Date is a Business Day falling within the Availability Period;

 

(b)

the amount of the Loan requested is:

 

 

(i)

a minimum of €5,000,000 and an integral multiple of €250,000 or an amount which complies with Clause 6 (Optional Currencies);

 

(ii)

the maximum undrawn amount available under the Facility on the proposed Utilisation Date; or

 

(iii)

such other amount as the Facility Agent may agree; and

 

(c)

the proposed currency and Term comply with this Agreement.

 

 

5.3	Advance of Loan

 

(a)	The Facility Agent must promptly notify each Lender of the details of the requested Loan and the amount of its share in that Loan.

 

(b)	The amount of each Lender’s share of the requested Loan will be its Pro Rata Share on the proposed Utilisation Date.

 

(c)	No Lender is obliged to participate in a Loan if, as a result:

 

(i)

its share in the Loans would exceed its Commitment; or

 

(ii)

the Loans would exceed the Total Commitments.

 

(d)	If the conditions set out in this Agreement have been met, each Lender must make its share in the requested Loan available to the Facility Agent for the Company through its Facility Office on the Utilisation Date.

 

6.	OPTIONAL CURRENCIES

 

6.1

General

 

 

 

 

(a)

if the Loan is denominated in euros, its amount; or

 

(b)

if the Loan is denominated in an Optional Currency, its equivalent in euros calculated on the basis of the Facility Agent's Spot Rate of Exchange one Business Day before the Rate Fixing Day for that Term.

 

 

6.2

Selection

 

(a)	The Company must select the currency of a Loan in its Request.

 

 

(b)	The amount of a Loan requested in an Optional Currency must be a minimum amount of the equivalent of €5,000,000 in the Optional Currency and in integral multiples of the equivalent of €250,000 in the Optional Currency.

 

(c)	Unless the Facility Agent otherwise agrees, the Loans may not be denominated at any one time in more than four currencies.

 

6.3	Conditions relating to Optional Currencies

 

(a)	A Loan may be denominated in an Optional Currency for a Term if:

 

(i)

that Optional Currency is readily available in the amount required and freely convertible into euros in the relevant interbank market on the Rate Fixing Day and the first day of that Term; and

 

(ii)

that Optional Currency is Canadian Dollars, Czech Koruna or US Dollars or has been previously approved by the Facility Agent (acting on the instructions of all the Lenders).

 

(b)	If the Facility Agent has received a request from the Company for a currency (other than the Optional Currency specified in Clause 6.3(a)(ii)) to be approved as an Optional Currency, the Facility Agent must, within five Business Days, confirm to the Company:

 

(i)

whether or not the Lenders have given their approval; and

 

(ii)

if approval has been given, the minimum amount (and, if required, integral multiples) for any Loan in that currency.

 

6.4	Revocation of currency

 

(a)	Notwithstanding any other term of this Agreement, if before 9.30 a.m. on any Rate Fixing Day the Facility Agent receives notice from a Lender that:

 

(i)

the Optional Currency requested is not readily available to it in the relevant interbank market in the amount and for the period required; or

 

(ii)

participating in a Loan in the proposed Optional Currency might contravene any law or regulation applicable to it,

 

 

(b)	In this event:

 

(i)

that Lender must participate in the Loan in euros; and

 

(ii)

the share of that Lender in the Loan and any other similarly affected Lender(s) will be treated as a separate Loan denominated in euros during that Term.

 

(c)	Any part of a Loan treated as a separate Loan under this Subclause will not be taken into account for the purposes of any limit on the number of Loans or currencies outstanding at any one time.

 

(d)	A Loan will still be treated as a Rollover Loan if it is not denominated in the same currency as the maturing Loan by reason only of the operation of this Subclause.

 

 

6.5	Optional Currency equivalents

 

 

(a)

whether any limit under this Agreement has been exceeded;

 

(b)

the amount of a Loan;

 

(c)

the share of a Lender in a Loan;

 

(d)

the amount of any repayment or prepayment of a Loan; or

 

(e)

the undrawn amount of a Lender's Commitment,

 

 

6.6	Notification

 

 

7.

REPAYMENT

 

(a)	The Company must repay each Loan made to it in full on its Maturity Date.

 

(b)	Where the Maturity Date for an outstanding Loan coincides with the Utilisation Date for a new Loan to be denominated in the same currency as the outstanding Loan, the Facility Agent will apply the new Loan in or towards repayment of the outstanding Loan so that:

 

(i)

where the amount of the outstanding Loan exceeds the amount of the new Loan, the Company will only be required to repay the excess;

 

(ii)

where the amount of the outstanding Loan is exactly the same as the amount of the new Loan, the Company will not be required to make any payment;

 

(iii)

where the amount of the new Loan exceeds the amount of the outstanding Loan, the Company will not be required to make any payment and the excess will be advanced to the Company,

 

 

(c)	Subject to the other terms of this Agreement, any amounts repaid under paragraph 7(a) may be re-borrowed.

 

8.	PREPAYMENT AND CANCELLATION

 

8.1	Mandatory prepayment - illegality

 

(a)	If at any time:

 

(i)

it is necessary under the laws and constitution of the Republic:

 

(A)

in order to enable any Lender to enforce its rights under the Finance Documents; or