Exhibit 10.15
▇▇▇▇▇▇▇▇
CHANCE
PUNDER
Execution Copy
Dated September 2002
SANITEC OY
as Original Borrower, Original Guarantor and Parent
THE OBLIGORS
named herein
BAYERISCHE HYPO- UND VEREINSBANK AG
as Arranger and Underwriter
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
as Facility Agent, Fronting Bank and Security Agent
and
THE BANKS
named herein
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FOURTH AMENDMENT AGREEMENT
RELATING TO A SENIOR MULTICURRENCY
TERM LOAN AND REVOLVING CREDIT
FACILITIES AGREEMENT DATED 26 APRIL 2001
AS AMENDED AND RESTATED BY A FIRST AMENDMENT
AGREEMENT DATED 27 AUGUST 2001, A SECOND
AMENDMENT AGREEMENT DATED 14 DECEMBER 2001
AND A THIRD AMENDMENT AGREEMENT DATED
7 MAY 2002
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THIS AGREEMENT is dated September 2002 and made between:
(1) SANITEC OY (formerly Pool Acquisition Helsinki Oy) as parent (the
"PARENT"), original borrower (the "ORIGINAL BORROWER") and original
guarantor (the "ORIGINAL GUARANTOR");
(2) THE COMPANIES listed in Part 1 of Schedule 1 (together with the Parent,
the "OBLIGORS");
(3) BAYERISCHE HYPO- UND VEREINSBANK AG as arranger (the "ARRANGER") and
underwriter (the "UNDERWRITER");
(4) BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH as facility agent for
the Banks (the "FACILITY Agent"), fronting bank (the "FRONTING BANK")
and security agent for the Finance Parties (the "SECURITY AGENT"); and
(5) THE FINANCIAL INSTITUTIONS named as Banks in Part 2 of Schedule 1.
RECITALS
(A) Pursuant to a EUR 615,000,000 senior multicurrency term loan and
revolving credit facilities agreement dated 26 April 2001 between,
INTER ALIOS, the Parent as parent and as original borrower, the Parent
and Pool Financing Helsinki Oy as original guarantors, Bayerische Hypo-
und Vereinsbank AG as arranger and underwriter, Bayerische Hypo- und
Vereinsbank AG, London Branch as facility agent and as security agent
and the Banks named therein (as amended, novated, supplemented,
superseded or extended prior to the date of this Agreement, the "SENIOR
FACILITIES AGREEMENT"), the Banks agreed to grant certain facilities to
the Parent and certain entities which accede thereto as additional
borrowers.
(B) By amendment and restatement agreements dated 27 August 2001, 14
December 2001 and 7 May 2002, the terms of the Senior Facilities
Agreement were amended and restated.
(C) The Parent has requested that the Senior Facilities Agreement be
amended in order to, INTER ALIA, allow for existing borrowings under
tranche (c) of the Term A2 Facility and certain existing borrowings
under the Term B Facility (each as defined in the Senior Facilities
Agreement) to be transferred to other Obligors and to amend certain
other provisions of the Senior Facilities Agreement. The parties have
now agreed to amend the Senior Facilities Agreement on the terms and
subject to the conditions hereof.
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IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"EFFECTIVE DATE" means:
(a) 20 September 2002 PROVIDED THAT by 10.00 a.m. (London time) on
the date which is two Business Days prior to such date the
Facility Agent confirms in writing to the Banks and the Parent
that it has received each of the documents listed in Schedule
2 (CONDITIONS PRECEDENT), each in a form and substance
satisfactory to the Facility Agent; or
(b) if paragraph (a) above is not satisfied, 21 October 2002
PROVIDED THAT by 10.00 a.m. (London time) on the date which is
two Business Days prior to such date the Facility Agent
confirms in writing to the Banks and the Parent that it has
received each of the documents listed in Schedule 2
(CONDITIONS PRECEDENT), each in a form and substance
satisfactory to the Facility Agent,
PROVIDED FURTHER THAT if neither paragraph (a) or (b) is satisfied there
shall be no Effective Date.
"EXCHANGE BORROWERS" shall have the meaning given to such term in the
Restated Agreement.
"FIRST EXISTING TERM B ADVANCE" means an advance in an amount of EUR
31,000,000 outstanding under the Term B Facility.
"KERAMAG SHARE PLEDGE AGREEMENTS" means the Keramag Share Pledge
Agreements (Allia International S.A.S.) and the Keramag Share Pledge
Agreements (Sanitec Oy).
"KERAMAG SHARE PLEDGE AGREEMENTS (ALLIA INTERNATIONAL S.A.S.)" means the
first, second and third ranking share pledge agreements between Allia
International S.A.S. and the Security Agent and other pledgees over the
shares in Keramag AG, as amended, novated, supplemented and restated.
"KERAMAG SHARE PLEDGE AGREEMENTS (SANITEC OY)" means the first, second
and third ranking share pledge agreements between the Parent and the
Security Agent and other pledgees over the shares in Keramag AG, as
amended, novated, supplemented and restated.
"RESTATED AGREEMENT" means the Senior Facilities Agreement, as amended
by this Agreement, the terms of which are set out in Annex I (RESTATED
AGREEMENT).
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"SECOND EXISTING TERM B ADVANCE" means an advance in an amount of EUR
78,450,000 outstanding under the Term B Facility.
1.2 INCORPORATION OF DEFINED TERMS
(a) Terms defined in the Senior Facilities Agreement shall, unless
otherwise defined herein (including in the recitals), have the
same meaning herein.
(b) The principles of construction and interpretation set out in
the Senior Facilities Agreement shall have effect as if set
out in this Agreement.
1.3 CLAUSES
(a) In this Agreement any reference to a "Clause", "Schedule" or
"Annex" is, unless the context otherwise requires, a reference
to a Clause, Schedule or Annex of this Agreement.
(b) Clause, Schedule and Annex headings are for ease of reference
only.
2. RESTATEMENT AND WAIVER
2.1 RESTATEMENT OF THE SENIOR FACILITIES AGREEMENT
With effect from the Effective Date the Senior Facilities Agreement
shall be amended and restated so that it shall be read and construed for
all purposes as set out in Annex I (RESTATED AGREEMENT.)
2.2 AMENDMENTS TO SECURITY DOCUMENTS
Each of the Banks consents to the amendments to the Finance Documents
made by the amendment agreements referred to in Schedule 2 (CONDITIONS
PRECEDENT).
3. CONVERSION OF TERM B ADVANCES
(i) On 20 September 2002 and if 20 September 2002 is the Effective
Date, immediately before the Restated Agreement becomes
effective in accordance with Clause 2.1 (RESTATEMENT OF THE
SENIOR FACILITIES AGREEMENT), the First Existing Term B
Advance and the Second Existing Term B Advance shall be
consolidated into one Term B Advance.
(ii) On the Effective Date and if 20 September 2002 is the
Effective Date immediately after the Restated Agreement
becomes effective in accordance with Clause 2.1 (RESTATEMENT
OF THE SENIOR FACILITIES AGREEMENT), the single Term B Advance
created pursuant to paragraph (i) of this Clause 3 shall be
converted into:
(a) a Term B1 Advance outstanding to the Term B1 Banks
under the Term B1 Facility in an amount of EUR
83,715,623; and
(b) a Term B2 Advance outstanding to the Term B2 Banks
under the Term B2 Facility in an amount of EUR
25,734,377.
Notwithstanding Clause 4 (INTEREST PERIODS FOR TERM ADVANCES),
the first Interest Period in respect of the Term B Advance
created pursuant to paragraph (i) of this Clause 3 shall end
on 21 October 2002.
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4. REPRESENTATIONS AND COVENANTS
4.1 REPEATED REPRESENTATIONS
Each Obligor makes the Repeated Representations as if each reference in
those representations to "this Agreement" or "the Finance Documents"
includes a reference to (a) this Agreement and (b) the Restated
Agreement.
4.2 MEMORANDUM
The Parent represents and warrants to the Finance Parties on the date
hereof that to the best of its knowledge and belief the memorandum
referred to in paragraph E6 of Schedule 2 (CONDITIONS PRECEDENT) is true
and accurate in every material respect and nothing has been omitted
which renders such memorandum inaccurate or misleading in any material
respect.
5. CONTINUITY, AFFIRMATION OF GUARANTEES AND FURTHER ASSURANCE
5.1 CONTINUING OBLIGATIONS AND FINANCE DOCUMENT
The provisions of the Finance Documents shall, save as expressly amended
by this Agreement, continue in full force and effect. This Agreement
shall constitute a Finance Document.
5.2 FURTHER ASSURANCE
Each Obligor shall at the request of the Facility Agent and at its own
expense, do all such acts and things necessary or desirable to give
effect to the amendments effected or to be effected pursuant to this
Agreement.
5.3 AFFIRMATION OF GUARANTEES
Each Obligor confirms to the Finance Parties that on and after the
Effective Date: (i) its obligations as a Guarantor continue in full
force and effect and (ii) the reference to Finance Documents in Schedule
11 of the Restated Agreement shall be construed as including the
Restated Agreement and the amendment agreements to the Security
Documents referred to in Schedule 2 (CONDITIONS PRECEDENT).
5.4 AFFIRMATION OF SECURITY
5.4.1 Each Obligor party to a Security Document governed by the laws
of Germany confirms to the Security Agent and the other
Beneficiaries (as defined in the Intercreditor Agreement) that
on and after the Effective Date:
(i) its obligations under such Security Document continue in
full force and effect;
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(ii) references therein (whether expressly or by reference to
any other document or agreement) to the "Finance
Documents" shall be construed as including the Restated
Agreement and the amendment agreements to the Security
Documents referred to in Schedule 2 (CONDITIONS
PRECEDENT); and
(iii) for the avoidance of doubt, the Secured Obligations (as
defined in the relevant Security Document) comprise all
present and future obligations and liabilities (whether
actual or contingent and whether owed jointly or
severally or in any other capacity whatsoever) which are
now or have been owed or become owing by the Exchange
Borrowers to the Pledgees (including any future Pledgee
by way of transfer or assignment of any right or
obligation in accordance with the relevant provision of
the Facility Documents (as defined in the Intercreditor
Agreement) under the Facility Documents.
The Parent and Allia International S.A.S. further confirm that
any transfer of shares in Keramag Keramische Werke AG from the
Parent to Allia International S.A.S. shall not be deemed to be
a redelivery of possession of the relevant shares to the
Parent and shall consequently not be construed as the lapsing
of the pledge pursuant to section 1253 of the German Civil
Code (BURGERLICHES GESETZBUCH) and that therefore the share
pledges granted by the Parent shall continue in full force and
effect. A transfer of shares in Keramag Kermamische Werke AG
is only permitted if it is conducted on the basis of an
instruction set out in Schedule 3 (INSTRUCTION REGARDING THE
TRANSFER OF SHARES IN KERAMAG AG).
5.4.2 Each Obligor party to a Security Document governed by the laws
of Sweden confirms to the Security Agent and the other
Beneficiaries (as defined in the Intercreditor Agreement) that
on and after the Effective Date:
(i) its obligations under such Security Document continue in
full force and effect; and
(ii) references therein (whether expressly or by reference to
any other document or agreement) to the "Finance
Documents" shall be construed as including the Restated
Agreement and the amendment agreements to the Security
Documents referred to in Schedule 2 (CONDITIONS
PRECEDENT).
5.4.3 Each Obligor party to a Security Document governed by the laws
of Finland confirms to the Security Agent and the other
Beneficiaries (as defined in the Intercreditor Agreement) that
on and after the Effective Date:
(i) its obligations under such Security Document continue in
full force and effect; and
(ii) references therein (whether expressly or by reference to
any other document or agreement) to the "Finance
Documents" shall be construed as including the Restated
Agreement and the amendment agreements to the Security
Documents referred to in Schedule 2 (CONDITIONS
PRECEDENT).
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5.4.4 Pursuant to article 1278 of the French Civil Code any Security
Document governed by French law executed by an Obligor is
hereby expressly preserved for the benefit of the Security
Agent and the Beneficiaries (as defined in each Security
Document governed by French law).
Each Obligor party to a Security Document governed by French
law confirms that on and after the Effective Date:
(i) its obligations under such Security Document continue in
full force and effect; and
(ii) references therein to the "Finance Documents" shall be
construed as including the Restated Agreement and the
amendment agreements to the Security Documents referred
to in Schedule 2 (CONDITIONS PRECEDENT).
5.4.5 For the avoidance of doubt, each Obligor party to an existing
Security Document governed by the laws of The Netherlands
confirms to Bayerische Hypo- und Vereinsbank AG, London Branch
as Pledgee (as defined in such Security Documents) that
reference to an "intercreditor agreement dated on or about the
date hereof" in the definition of "Intercreditor Agreement"
contained therein shall be read and construed for the purpose
of such definition as if it were a reference to an
"intercreditor agreement dated 26 April 2001".
6. FEES, COSTS AND EXPENSES
6.1 TRANSACTION EXPENSES
The Parent shall promptly on demand pay the Facility Agent and each of
the Banks the amount of all costs and expenses (including legal fees)
together with any VAT thereon reasonably incurred by any of them in
connection with the negotiation, preparation, printing and execution of
this Agreement and any other document referred to in this Agreement.
6.2 ENFORCEMENT COSTS
The Parent shall, from time to time on demand, pay to each Finance Party
the amount of all costs and expenses (including legal fees) together
with any VAT thereon incurred by that Finance Party in or in connection
with the enforcement of, or the preservation of any rights under this
Agreement and any other document referred to in this Agreement.
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6.3 STAMP TAXES
The Parent shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar taxes payable in respect of this Agreement and any other
document referred to in this Agreement.
6.4 AMENDMENT FEE
6.4.1 The Parent shall on the date of this Agreement pay to the
Facility Agent for the account of the Banks a non-refundable
amendment fee in an amount equal to 0.15 per cent. of the
aggregate amount of the Term Outstandings and the Revolving
Commitments at the date of this Agreement.
6.4.2 Such amendment fee shall be paid in immediately available,
freely transferable, cleared Euro funds into the account of
the Facility Agent with the following details:
Bank: Bayerische Hypo- und Vereinsbank AG (▇▇▇▇▇▇▇▇)
Account number: ▇▇▇▇▇▇▇▇,
for the account of Bayerische Hypo- und Vereinsbank AG, London
Branch (HYVEGB2L).
7. MISCELLANEOUS
7.1 INCORPORATION OF TERMS
The provisions of Clause 35.1 (BINDING AGREEMENT), Clause 39 (REMEDIES
AND WAIVERS, PARTIAL INVALIDITY) and Clause 43 (GOVERNING LAW AND
JURISDICTION) of the Senior Facilities Agreement shall be incorporated
into this Agreement as if set out in full in this Agreement and as if
references in those clauses to "this Agreement" or "the Finance
Documents" are references to this Agreement.
7.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
7.3 PREVAILING LANGUAGE
Although this Agreement is being signed in the English and Polish
languages, this Agreement and the Restated Agreement attached as Annex I
have been negotiated by the parties hereto entirely in English (the
Polish version of this Agreement being produced as a Polish law
requirement).
In the event of any discrepancies between the English and Polish
versions of this Agreement or the Restated Agreement attached as an
Annex I or any dispute regarding the interpretation of any provision in
the English or Polish language versions of this Agreement or the
Restated Agreement attached as an Annex I, the English version of this
Agreement or the Restated Agreement attached as an Annex I, as the case
may be, shall prevail and questions of interpretation shall be addressed
solely in the English language.
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7.4 AUTHORISATION TO SIGN OTHER LANGUAGE VERSIONS OF THE FINANCE DOCUMENTS
Each of the Finance Parties hereby authorises the Facility Agent to
execute on their behalf Polish language versions of any of the Finance
Documents. Each of the Obligors hereby authorises ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇
▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇ of CMS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Warsaw, each
individually to execute on their behalf Polish language versions of any
of this Agreement, the Restated Agreement, the Intercreditor Agreement
and the Security Trust Agreement.
7.5 OWN ACCOUNT
Each Obligor represents that the transactions referred to in this
Agreement and the Restated Agreement will be undertaken on its own
account.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
PART 1
THE OBLIGORS (IN ADDITION TO SANITEC OY)
Pool Financing Helsinki Oy
Evac Oy
Evac International Oy
Ido Bathroom Ltd.
Sanitec Italia S.p.A.
Domino S.p.A.
Pozzi-Ginori S.p.A.
Allia International S.A.S. (formerly called Sanitec International S.A.)
Allia S.A.S. (formerly called Allia S.A.)
Sanitec Kolo Sp. z o.o.
Koninklijke Sphinx B.V.
Sphinx Sanitair B.V.
Sphinx Services B.V.
Royal Sanitec AB
Ifo Sanitar AB
Sanitec Leasing AB
Sanitec UK Limited
Twyford Holdings Limited
Twyford Bathrooms
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PART 2
THE BANKS
BANK NAME CREDIT OFFICE ADDRESS
The Governor and Company of the Bank of Ireland Portfolio Management
La Touche House
IFSC
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
The Governor and Company of the Bank of Scotland ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ House
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Bayerische Landesbank Girozentrale ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
BHF-Bank Aktiengesellschaft Bockenheimer ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
CDP Euromezz S.a.R.L. ▇▇▇ ▇▇▇▇▇▇ ▇.▇.▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Credit Suisse First Boston ▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dresdner Bank AG in Hamburg Financial Engineering
▇▇▇▇▇ ▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
Mizuho Corporate Bank, Ltd River ▇▇▇▇▇ ▇▇▇▇▇
▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ Sachs Credit Partners, LP C/O Goldman ▇▇▇▇▇ International
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Harbourmaster Loan Corporation B.V. Euro Capital Structures Limited
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇
Ireland
Landesbank Hessen-Thueringen Girozentrale ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇▇
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D-60311 Frankfurt/Main
Landesbank Schleswig-Holstein Girozentrale ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ V
Nordea Bank Finland Plc ▇▇▇▇▇▇▇ ▇▇▇▇▇ katu 3-5
FIN-00020 Nordea-▇▇▇▇▇▇
Finland
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation c/o Merrill ▇▇▇▇▇ International
European Leveraged Finance
▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Centre
▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
OKO Osuuspankkien Keskuspankki Oyj ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
The Prudential Assurance Company Limited Private Financing Group
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
The Royal Bank of Scotland Plc, Niederlassung Frankfurt ▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
NORDIC INVESTMENT BANK ▇.▇.▇▇▇ ▇▇▇
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Deutsche Bank AG, London Winchester House
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Bayerische Hypo- und Vereinsbank AG ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Banca di Credito Finanziario e ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇ ▇.▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Jubilee CDO I B.V. Barclays Capital
5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Duchess I CDO ▇.▇. ▇▇▇▇ Street Capital Debt Management
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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SCHEDULE 2
CONDITIONS PRECEDENT
A. CORPORATE DOCUMENTS
1. In relation to each Obligor:
(a) a certified copy of the constitutional documents of such
Obligor or a confirmation, given by an Authorised Signatory of
such Obligor, certifying that, as at the date hereof, there
has been no change to the constitutional documents delivered
by such Obligor pursuant to the Senior Facilities Agreement on
the date it executed or acceded to (as applicable) the Senior
Facilities Agreement;
(b) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Obligor, of
a board/shareholders/managing directors resolution or any
other resolution required by law of such Obligor approving the
execution, delivery and performance of this Agreement and any
other document referred to in this Schedule 2 and the terms
and conditions thereof and authorising a named person or
persons to sign this Agreement and such other documents
referred to in this Schedule 2; and
(c) a certificate of an Authorised Signatory of such Obligor
setting out the names and signatures of the persons authorised
to sign, on behalf of such Obligor, this Agreement and any
documents to be delivered by such Obligor pursuant hereto.
B. EXCHANGE BORROWERS
2. (a) Borrower Transfer Agreement (as defined in the Restated
Agreement) between INTER ALIOS Sanitec Oy as existing borrower
and Allia International S.A.S. as new borrower;
(b) The documents referred to in paragraphs 1, 3 and 5 of Part B
of Schedule 8 of the Restated Agreement, relating to the
Borrower Transfer Agreement referred to in paragraphs 2(a)
above and 2(c) below; and
(c) Borrower Transfer Agreement (as defined in the Restated
Agreement) between INTER ALIOS Sanitec Oy as existing borrower
and Allia S.A.S. as new borrower.
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C. SECURITY DOCUMENTS
3. (a) (i) Duly executed pledges over Intellectual Property executed by
Domino S.p.A. and Pozzi-Ginori S.p.A.
(ii) Confirmation agreements relating to the existing Italian law
Security Documents.
(b) Evidence that all action required to register in the register of
Koninklijke Sphinx B.V. the transfer of all the shares acquired by
Allia International S.A.S. in Koninklijke Sphinx B.V. and the
pledge of such shares in favour of the Finance Parties has been
taken.
(c) Confirmation Letter relating to the existing English law Security
Documents.
(d) (i) Pledge of shares agreement(s) in respect of shares in
Sanitec Kolo Sp. z o.o.
(ii) Pledge of assets agreement(s) in respect of assets of
Sanitec Kolo Sp. z o.o.
(iii) Revaluation agreement made between Sanitec Oy and
Bayerische Hypo- und Vereinsbank AG, London Branch.
(e) (i) Notarial amendment agreement relating to the registered
mortgage over real estate executed by Allia S.A.S.
(ii) Confirmation in relation to the existing French law
Security Documents (other than the registered mortgage
referred to in (e)(i) above) together with evidence that
all necessary notifications, and where practicable,
registrations have been made to and with (a) the French tax
authorities and (b) the French Commercial Court.
D. LEGAL OPINIONS
4. (a) An opinion of ▇▇▇▇▇▇▇▇ e ▇▇▇▇▇▇▇▇ Chance, Italian counsel to the
Facility Agent with respect to the documents referred to in
paragraph 3(a) above and this Agreement.
(b) An opinion of ▇▇▇▇▇▇▇▇ Chance, Dutch counsel to the Facility Agent
with respect to this Agreement.
(c) An opinion of ▇▇▇▇▇▇▇▇ Chance Punder, German counsel to the
Facility Agent relating INTER ALIA to this Agreement, the Restated
Agreement and the document referred to in paragraph 2(a) above.
(d) An opinion of Hannes Snellmann, Finnish counsel to the Facility
Agent relating to this Agreement and the document referred to in
paragraph 2(a) above.
-13-
(e) An opinion of Advokatfirman ▇▇▇▇▇ KB, Swedish counsel to the
Facility Agent relating to this Agreement and the document
referred to in paragraph 3(c) above.
(f) An opinion of ▇▇▇▇▇▇▇▇ Chance SELAFA, French counsel to the
Facility Agent relating to this Agreement and the documents
referred to in paragraphs 2(a) and 3(e)(ii) above.
(g) An opinion of ▇▇▇▇▇▇▇▇ Chance Punder Spolka Komandytowa, Polish
counsel to the Facility Agent relating to this Agreement and the
documents referred to in paragraph 3(d) above.
(h) An opinion of ▇▇▇▇▇▇▇▇ Chance Punder, English counsel to the
Facility Agent relating to this Agreement and the document
referred to in paragraph 3(c) above.
E. MISCELLANEOUS
5. Evidence that the amendment fee required to be paid under Clause 6.4 of
this Agreement has been paid.
6. Memorandum from the Parent to the Facility Agent in relation to the tax
basis for introducing exchange borrowers in the Restated Agreement.
-14-
SCHEDULE 3
INSTRUCTION REGARDING THE TRANSFER OF SHARES IN KERAMAG AG
From: Bayerische Hypo- und Vereinsbank AG, London Branch
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ 6 PP
Great Britain
To: [The Depository Bank as defined in the Keramag Share Pledge
Agreements (Sanitec Oy)]
Date: [o]
RE: [DEPOSIT ACCOUNT AS DEFINED IN THE KERAMAG SHARE PLEDGE AGREEMENTS (SANITEC
OY) (THE "DEPOSIT ACCOUNT")]; TRANSFER OF SHARES
Dear Sirs,
Sanitec Oy has granted a first, second and third ranking pledge over the shares
in Keramag Keramische Werke AG held in collective safe custody and on the
Deposit Account specified above (the "PLEDGED SHARES") and any amount standing
currently or in the future to the credit balance of the above account in favour
of us and other pledgees.
We, acting in our capacity as Security Agent on our own behalf and on behalf of
the pledgees, hereby give you instruction to transfer the Pledged Shares on
behalf of Sanitec Oy to the following deposit account of Allia International
S.A.S.:
[Depository account of Allia International S.A.S. held at a
depositary bank located in the Federal Republic of Germany]
We hereby give you further instruction to notify the above mentioned bank before
such transfer is executed that the pledge over the Pledges Shares shall continue
in full force and effect after the share transfer and that the above mentioned
bank shall therefore hold the Pledged Shares for the benefit of the Security
Agent and the pledgees and not for the benefit of Allia International S.A.S.
Yours truly,
___________________________________________________
Bayerische Hypo- und Vereinbank AG,
London Branch
We approve hereto:_____________________________________________
-15-
Sanitec Oy
-16-
ANNEX I
RESTATED AGREEMENT
-17-
SIGNATURES
THE PARENT, ORIGINAL BORROWER AND ORIGINAL GUARANTOR
SANITEC OY
By:
THE OBLIGORS
POOL FINANCING HELSINKI OY
By:
EVAC OY
By:
EVAC INTERNATIONAL OY
By:
IDO BATHROOM LTD.
By:
SANITEC ITALIA S.P.A.
By:
DOMINO S.P.A.
By:
POZZI-GINORI S.P.A.
By:
-18-
ALLIA INTERNATIONAL S.A.S.
By:
ALLIA S.A.S.
By:
SANITEC KOLO SP. Z O.O.
By:
KONINKLIJKE SPHINX B.V.
By:
SPHINX SANITAIR B.V.
By:
SPHINX SERVICES B.V.
By:
ROYAL SANITEC AB
By:
IFO SANITAR AB
By:
SANITEC LEASING AB
By:
-19-
SANITEC UK LIMITED
By:
TWYFORD HOLDINGS LIMITED
By:
TWYFORD BATHROOMS
By:
THE ARRANGER AND UNDERWRITER
BAYERISCHE HYPO- UND VEREINSBANK AG
By:
THE FACILITY AGENT, FRONTING BANK AND SECURITY AGENT
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
By:
THE BANKS
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By:
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By:
BAYERISCHE LANDESBANK GIROZENTRALE
By:
BHF-BANK AKTIENGESELLSCHAFT
By:
CDP EUROMEZZ S.A.R.L.
-20-
By:
CREDIT SUISSE FIRST BOSTON
By:
DRESDNER BANK AG IN HAMBURG
By:
MIZUHO CORPORATE BANK, LTD
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, LP
By:
HARBOURMASTER LOAN CORPORATION B.V
By:
LANDESBANK HESSEN-THUERINGEN GIROZENTRALE
By:
LANDESBANK SCHLESWIG-HOLSTEIN GIROZENTRALE
By:
NORDEA BANK FINLAND PLC
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By:
OKO OSUUSPANKKIEN KESKUSPANKKI OYJ
By:
THE PRUDENTIAL ASSURANCE COMPANY LIMITED
By:
-▇▇-
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ PLC, NIEDERLASSUNG FRANKFURT
By:
NORDIC INVESTMENT BANK
By:
DEUTSCHE BANK AG, LONDON
By:
BAYERISCHE HYPO- UND VEREINSBANK AG
By:
CENTROBANCA BANCA DI CREDITO FINANZIARIO E MOBILARE S.P.A.
By:
JUBILEE CDO I B.V.
By:
DUCHESS I CDO S.A.
By:
-22-
▇▇▇▇▇▇▇▇
CHANCE
PUNDER
[GRAPHIC OMITTED]
ANNEX I
Dated 26 April
2001
Between
FIN NEWCO I
as Parent and Original Borrower
FIN NEWCO I
and
FIN NEWCO II
as Original Guarantors
BAYERISCHE HYPO- UND VEREINSBANK AG
as Arranger and Underwriter
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
as Fronting Bank
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
as Facility Agent and Security Agent
and
OTHERS
---------------------------------------------------------------------------
EUR 615,000,000
SENIOR MULTICURRENCY TERM LOAN AND REVOLVING
CREDIT FACILITIES AGREEMENT
as amended and restated by a first amendment and restatement
agreement dated 27 August 2001, a second amendment and
restatement agreement dated 14 December 2001, a third amendment
and restatement agreement dated 7 May 2002 and a fourth
amendment and restatement agreement dated on or about
13 September 2002
---------------------------------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation................................................................1
2. The Facilities...............................................................................34
3. Utilisation of the Term Facilities...........................................................37
4. Interest Periods for Term Advances...........................................................41
5. Payment and Calculation of Interest on Term Advances.........................................42
6. Utilisation of the Revolving Facility........................................................44
7. Payment and Calculation of Interest on Revolving Advances....................................47
8. Ancillary Facilities.........................................................................48
9. Market Disruption............................................................................51
10. Notification.................................................................................51
11. Repayment of the Term Facilities.............................................................52
12. Repayment of the Revolving Facility..........................................................54
13. Borrowers' Liabilities in Relation to a Bank Guarantee.......................................54
14. Mandatory Prepayment.........................................................................56
15. Cancellation and Voluntary Prepayment........................................................60
16. Taxes........................................................................................63
17. Increased Costs..............................................................................64
18. Illegality...................................................................................64
19. Mitigation...................................................................................65
20. Representations..............................................................................65
21. Financial Information........................................................................72
22. Financial Condition..........................................................................75
23. Covenants....................................................................................76
24. Events of Default............................................................................86
25. Guarantee and Indemnity......................................................................90
26. Commitment Commission and Fees...............................................................91
27. Costs and Expenses...........................................................................92
28. Default Interest and Indemnity...............................................................93
29. Currency of Account and Payment..............................................................94
30. Payments.....................................................................................95
31. Set-Off......................................................................................97
32. Sharing......................................................................................97
33. The Facility Agent, the Arranger and the Banks...............................................99
34. The Banks and the Fronting Bank.............................................................100
35. Assignments and Transfers...................................................................101
36. Additional Borrowers........................................................................104
37. Additional Guarantors.......................................................................109
38. Calculations and Evidence of Debt...........................................................110
39. Remedies and Waivers, Partial Invalidity....................................................112
40. Notices.....................................................................................112
41. Counterparts................................................................................113
42. Amendments..................................................................................113
43. Governing Law and Jurisdiction..............................................................114
SCHEDULE 1 The Banks.................................................................................116
SCHEDULE 2 Form of Transfer Certificate..............................................................120
SCHEDULE 3 Conditions Precedent......................................................................124
SCHEDULE 4 Notice of Drawdown........................................................................127
SCHEDULE 5 Financial Condition.......................................................................129
SCHEDULE 6 Form of Compliance Certificate............................................................136
SCHEDULE 7 Form of Borrower/Guarantor Accession Agreement............................................138
SCHEDULE 8...........................................................................................141
Part A Additional Conditions Precedent For Additional/Substitute Obligors............................141
SCHEDULE 9 Form of Resignation Notice................................................................144
SCHEDULE 10 Facility Agent's Discretion and Obligations..............................................145
SCHEDULE 11 Guarantee and Indemnity..................................................................150
SCHEDULE 12 Mandatory Cost Formulae..................................................................153
SCHEDULE 13 Indemnification Bank Guarantee...........................................................156
SCHEDULE 14 Form Of Letter For Determination Of The Effective Global Rate (TAUX EFFECTIF
GLOBAL)..................................................................................157
SCHEDULE 15 Form Of Borrower Transfer Agreement......................................................159
THIS AGREEMENT is made on 26 April 2001
BETWEEN
(1) FIN NEWCO I as original borrower (the "PARENT" or the "ORIGINAL
BORROWER"), together with the entities which accede hereto as
Additional Borrowers, the "BORROWERS");
(2) FIN NEWCO I and FIN NEWCO II as original guarantors (the "ORIGINAL
GUARANTORS" together with the entities which accede hereto as
Additional Guarantors, the "GUARANTORS");
(3) BAYERISCHE HYPO- UND VEREINSBANK AG as arranger and underwriter of the
Facilities (the "ARRANGER" and the "UNDERWRITER");
(4) BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH as fronting bank
(the "FRONTING BANK");
(5) BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH as facility agent
for the Banks, and as security agent for the Finance Parties (the
"FACILITY AGENT" and the "SECURITY AGENT");
(6) THE FINANCIAL INSTITUTIONS named in Part I of Schedule 1 (the "TERM
BANKS"); and
(7) THE FINANCIAL INSTITUTIONS named in Part II of Schedule 1 (the
"REVOLVING BANKS").
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
"ACCESSION AGREEMENT" means a Borrower Accession Agreement or a
Guarantor Accession Agreement.
"ACCOUNTANTS' REPORT" means the report prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
dated on or about the date hereof in form and substance satisfactory to
the Arranger and either (a) addressed to the Arranger and to the
Facility Agent on behalf of itself and the Banks from time to time or
(b) supplemented by a reliance letter agreeing to extend the benefit of
the report to each of the Arranger, the Facility Agent and the Banks
from time to time.
"ACQUISITION" means the purchase by the Parent of at least fifty-three
per cent. of the Target Company Shares on the terms of the Acquisition
Documents.
"ACQUISITION AGREEMENT" means the sale and purchase agreement in the
agreed form dated on or about the date hereof between, INTER ALIA, the
Parent and the Vendors
-1-
relating to the Acquisition together with all schedules, exhibits and
attachments to such agreement.
"ACQUISITION COSTS" means all fees, out-of-pocket costs and expenses,
stamp, registration and other taxes incurred by the Parent, Fin Newco
II, Fin Newco III, Lux Newco or any other member of the Group in
connection with the Acquisition, the Offers, the Facilities, the
Finance Documents and/or the PIK Loan.
"ACQUISITION DOCUMENTS" means the Acquisition Agreement including all
its schedules and attachments and all documents to be executed pursuant
thereto on or before the Closing Date in the form attached to or agreed
for the purposes of the Acquisition Agreement and such other documents
(if any) relating to the transactions contemplated in such agreements
and identified to the Facility Agent by the Parent in writing as an
Acquisition Document.
"ADDITIONAL BORROWER" means any company which has become an Additional
Borrower in accordance with Clause 36 (ADDITIONAL BORROWERS).
"ADDITIONAL GUARANTOR" means any company which has become an Additional
Guarantor in accordance with Clause 37 (ADDITIONAL GUARANTORS).
"ADDITIONAL OBLIGOR" means an Additional Borrower and/or Additional
Guarantor.
"ADVANCE" means a Revolving Advance or a Term Advance.
"ANCILLARY BANK" means each Revolving Bank which becomes an Ancillary
Bank by operation of Clause 8 (ANCILLARY FACILITIES).
"ANCILLARY COMMITMENT" means, in relation to an Ancillary Bank, the
maximum amount from time to time of the Ancillary Facilities to be made
available by that Ancillary Bank which has been authorised as such
under Clause 8 (ANCILLARY FACILITIES) to the extent not cancelled under
this Agreement.
"ANCILLARY FACILITY" means any facility provided pursuant to sub-clause
2.1.6.
"ANCILLARY OUTSTANDINGS" means, at any time, the aggregate equivalent
amount in euro of all banking arrangements of the following type under
each Ancillary Facility then in force:
(a) all amounts of principal then outstanding under any overdraft
facilities;
(b) the maximum face amount (excluding amounts in respect of
interest) of all guarantees, bonds and letters of credit then
outstanding under any guarantee, bonding or letter of credit
facilities; and
(c) in respect of any other facility (including any foreign
exchange facility) or financial accommodation such other
amount as the relevant Ancillary Bank may (acting reasonably
and in consultation with the Facility Agent) determine fairly
-2-
represents the aggregate exposure at such time of the
Ancillary Bank providing the same,
PROVIDED THAT such amount shall at no time exceed the relevant
Ancillary Bank's Ancillary Commitment.
"APPLICABLE A1 MARGIN" means, in relation to the Term A1 Outstandings
and subject to Clause 5.3 (MARGIN RATCHET), 2.25 % per annum.
"APPLICABLE A2 MARGIN" means, in relation to the Term A2 Outstandings
and subject to Clause 5.3 (MARGIN RATCHET), 2.25 % per annum.
"APPLICABLE B MARGIN" means, in relation to the Term B Outstandings,
2.75 % per annum.
"APPLICABLE C MARGIN" means in relation to the Term C Outstandings,
3.25% per annum.
"APPLICABLE REVOLVING MARGIN" means, in relation to the Revolving
Outstandings and subject to Clause 5.3 (MARGIN RATCHET), 2.25 % per
annum.
"APPROVED ADDITIONAL BORROWER" means such members of the Group as
agreed by the Parent and the Facility Agent (acting on the instructions
of an Instructing Group, in the event that Keramag AG is proposed as an
approved additional borrower and the instructions of all the Banks in
the case of any other member of the Group), subject to such member of
the Group's accession as an Additional Borrower to this Agreement in
accordance with Clauses 36.1 (REQUEST FOR ADDITIONAL BORROWER) and 36.2
(BORROWER CONDITIONS PRECEDENT).
"APPROVED SUBSTITUTE BORROWER" means a newly established limited
liability company incorporated under the laws of Luxembourg which has
not been trading or undertaken any commercial activities of any kind,
does not have any assets and has not incurred any obligations or
liabilities (actual or contingent).
"APPROVED SUBSTITUTE GUARANTOR" means a newly established limited
liability company incorporated under the laws of Luxembourg which has
not been trading or undertaken any commercial activities of any kind,
does not have any assets and has not incurred any obligations or
liabilities (actual or contingent).
"ASSIGNMENT AGREEMENT I" means the security assignment agreement
between Fin Newco II and the Security Agent pursuant to which Fin Newco
II assigns its rights against Fin Newco I under the Junior On-Loan and
the PIK On-Loan to the Security Agent.
"ASSIGNMENT AGREEMENT II" means the security assignment agreement
between Fin Newco I and the Security Agent pursuant to which Fin Newco
I assigns its rights under the Reports and the Acquisition Agreement.
-3-
"AUTHORISED SIGNATORY" means, in relation to an Obligor or proposed
Obligor, any person who is duly authorised (in such manner as may be
reasonably acceptable to the Facility Agent) and in respect of whom the
Facility Agent has received a certificate signed by a director or
another Authorised Signatory of such Obligor or proposed Obligor
setting out the name and signature of such person and confirming such
person's authority to act.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time, the
aggregate of its Available Term Commitments and Available Revolving
Commitment.
"AVAILABLE REVOLVING COMMITMENT" means, in relation to a Revolving Bank
at any time and save as otherwise provided herein, its Revolving
Commitment at such time LESS the aggregate of its share of the Euro
Amounts of the Revolving Outstandings (other than the Ancillary
Outstandings) and its Ancillary Commitment PROVIDED THAT such amount
shall not be less than zero.
"AVAILABLE REVOLVING FACILITY" means, at any time, the aggregate amount
of the Available Revolving Commitments adjusted, in the case of any
proposed utilisation so as to take into account:
(a) the Euro Amount of any reduction in the Revolving Commitment
of a Revolving Bank pursuant to the terms hereof;
(b) the Euro Amount of any Revolving Advance and/or Bank Guarantee
which, pursuant to any other utilisation, is to be made or, as
the case may be, issued; and
(c) the Euro Amount of any Revolving Advance and/or Bank Guarantee
which is due to be repaid,
on or before the proposed drawdown date.
"AVAILABLE TERM A1 COMMITMENT" means, in relation to a Term Bank at any
time and save as otherwise provided herein, its Term A1 Commitment at
such time LESS the aggregate of its share of the Term A1 Outstandings
at such time.
"AVAILABLE TERM A2 COMMITMENT" means, in relation to a Term Bank at any
time and save as otherwise provided herein, its Term A2 Commitment at
such time LESS the aggregate Euro Amount of its share of the Term A2
Outstandings at such time.
"AVAILABLE TERM B1 COMMITMENT" means, in relation to a Term B1 Bank at
any time and save as otherwise provided herein, its Term B1 Commitment
at such time LESS the aggregate of its share of the Term B1
Outstandings at such time.
"AVAILABLE TERM B2 COMMITMENT" means, in relation to a Term B2 Bank at
any time, zero.
-4-
"AVAILABLE TERM C COMMITMENT" means in relation to a Term Bank at any
time and save as otherwise provided herein, its Term C Commitment at
such time LESS the aggregate of its share of the Term C Outstandings at
such time.
"AVAILABLE TERM COMMITMENTS" means, in relation to a Term Bank at any
time and save as otherwise provided herein, the aggregate of its
Available Term A1 Commitment, its Available Term A2 Commitment, its
Available Term B1 Commitment, its Available Term B2 Commitment and its
Available Term C Commitment at such time and "AVAILABLE TERM
COMMITMENT" means any such available commitment.
"AVAILABLE TERM A1 FACILITY" means, at any time, the aggregate amount
of the Available Term A1 Commitments of the Term Banks at such time
adjusted, in the case of any proposed drawdown, so as to take into
account any reduction in the Term A1 Commitment of a Term Bank on or
before the proposed drawdown date pursuant to the terms hereof.
"AVAILABLE TERM A2 FACILITY" means, at any time, the aggregate amount
of the Available Term A2 Commitments of the Term Banks at such time
adjusted, in the case of any proposed drawdown, so as to take into
account any reduction in the Term A2 Commitment of a Term Bank on or
before the proposed drawdown date pursuant to the terms hereof.
"AVAILABLE TERM B1 FACILITY" means, at any time, the aggregate amount
of the Available Term B1 Commitments of the Term B1 Banks at such time
adjusted, in the case of any proposed drawdown, so as to take into
account any reduction in the Term B1 Commitment of a Term B1 Bank on or
before the proposed drawdown date pursuant to the terms hereof.
"AVAILABLE TERM B2 FACILITY" means zero.
"AVAILABLE TERM C FACILITY" means, at any time, the aggregate amount of
the Available Term C Commitments of the Term Banks at such time
adjusted, in the case of any proposed drawdown so as to take into
account any reduction in the Term C Commitment of a Term Bank on or
before the proposed drawdown date pursuant to the terms hereof.
"AVAILABLE TERM FACILITIES" means, at any time, the aggregate of the
Available Term A1 Facility, the Available Term A2 Facility, the
Available Term B1 Facility, the Available Term B2 Facility and the
Available Term C Facility at such time and "AVAILABLE TERM FACILITY"
means any such available facility.
"BANKS" means the Term Banks, the Revolving Banks and the Fronting Bank
and "BANK" means any one of them.
"BANK GUARANTEE" means a bank guarantee or letter of credit issued or
to be issued by the Fronting Bank pursuant to Clause 3 (UTILISATION OF
THE TERM FACILITIES) or Clause 6 (UTILISATION OF THE REVOLVING
FACILITY) in a form acceptable to the Facility Agent and the Fronting
Bank.
-5-
"BANK GUARANTEE AMOUNT" means:
(a) each sum paid or due and payable by the Fronting Bank to the
beneficiary of a Bank Guarantee pursuant to the terms of such
Bank Guarantee; and
(b) all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from the
Fronting Bank under a Bank Guarantee), claims, losses and
expenses which the Fronting Bank incurs or sustains in
connection with a Bank Guarantee,
in each case which has not been reimbursed pursuant to Clause 13
(BORROWERS' LIABILITIES IN RELATION TO A BANK GUARANTEE).
"BANK GUARANTEE COMMISSION RATE" means a bank guarantee commission rate
equal to the Margin applicable to the Facility under which the Bank
Guarantee is issued.
"BANK GUARANTEE PROPORTION" means, in relation to a Bank in respect of
any Bank Guarantee and save as otherwise provided herein, the
proportion (expressed as a percentage) borne by such Bank's Available
Revolving Commitment to the Available Revolving Facility, immediately
prior to the issue of such Bank Guarantee.
"BC PARTNERS" means BC Partners Limited.
"BC PARTNERS FUNDS" means funds advised by BC Partners.
"BORROWER ACCESSION AGREEMENT" means an agreement substantially in the
form set out in Schedule 7 (FORM OF BORROWER/GUARANTOR ACCESSION
AGREEMENT).
"BORROWER TRANSFER AGREEMENT" means an agreement substantially in the
form set out in Schedule 15 (FORM OF BORROWER TRANSFER AGREEMENT).
"BUDGET" means the Business Plan and with respect to each financial
year commencing on or after 31 December 2001 the latest budget
delivered by the Parent to the Facility Agent and agreed with the
Facility Agent pursuant to Clause 21.6 (BUDGET).
"BUSINESS DAY" means:
(a) (in relation to any day other than a date for the payment or
purchase of, or rate fixing relating to, euro) a day, other
than a Saturday or Sunday, on which banks are open for general
business in Frankfurt, Munich and London and (in relation to
any date for payment or purchase of, or rate fixing relating
to, a sum denominated in 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, or rate
fixing relating to, euro), a TARGET Day, on which banks are
open for general business in Munich and London.
"BUSINESS PLAN" means the financial model including profit and loss,
balance sheet and cash flow projections in agreed form as of the date
hereof relating to the Group (for
-6-
these purposes assuming completion of the Acquisition) in agreed form
delivered to the Facility Agent in accordance with Clause 2.3
(CONDITIONS PRECEDENT).
"CASH COLLATERAL" means in relation to any Bank Guarantee or Bank
Guarantee Proportion of a Bank Guarantee, a deposit in such
interest-bearing account or accounts in the name of the Original
Borrower or the relevant Borrower as the Facility Agent may specify,
such deposit and account to be secured in favour of, and on terms and
conditions acceptable to, the Finance Parties.
"CAPITAL EXPENDITURE" shall have the meaning given to such term in
Schedule 5 (FINANCIAL CONDITION).
"CERTAIN VOLUNTARY OFFER ADVANCE" means any of the Term A1 Advance, the
Term B Advance and the Term C Advance in each case drawn-down to meet
the payment obligations of the Parent arising under the initial offer
period (but not any extension thereof) of the Voluntary Offer, PROVIDED
THAT any such Term Advance shall only constitute a Certain Voluntary
Offer Advance, if such payment obligations are to be met (save with
regard to a grace period of three days for settlement of such
obligations) if later than on the Closing Date then within 21 days from
15 May 2001 (or otherwise on the Closing Date).
"CLOSING DATE" means the date on which the Acquisition is completed.
"COMMITMENT" means, in relation to a Bank at any time, the aggregate of
its Term Commitment and its Revolving Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 6 (FORM OF COMPLIANCE CERTIFICATE).
"CONSOLIDATED ADJUSTED EBITDA" shall have the meaning given to such
terms in Schedule 5 (FINANCIAL CONDITION).
"DUTCH NEWCO" means Pool Acquisition Netherlands B.V., a limited
liability company duly organised under the laws of the Netherlands with
its registered corporate seat in Volendam, registered under 37096393 at
the Trade Registry in Volendam having a registered share capital of EUR
30,000,000.
"EFFECTIVE DATE OF THE MERGER" means the date on which the Merger
becomes effective in accordance with the laws of Finland.
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"EMU LEGISLATION" means legislative measures of the European Union for
the introduction of, changeover to, or operation of the euro, in one or
more member states being in part legislative measures to implement the
third stage of EMU.
"ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
under which money or
-7-
claims to, or the benefit of, a bank or other account may be applied,
set off or made subject to a combination of accounts so as to effect
discharge of any sum owed or payable to any person or (c) any other
type of preferential arrangement (including any title transfer and
retention arrangement) having a similar effect.
"ENVIRONMENTAL CLAIM" means any claim, proceedings or investigation by
any person pursuant to 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.
"ENVIRONMENTAL REPORT" means the environmental due diligence report
prepared by ERM ▇▇▇▇▇▇▇▇ in form and substance satisfactory to the
Arranger.
"ERISA" means the United States Employee Retirement Income Security Act
of 1974, as amended or re-enacted from time to time.
"ERISA AFFILIATE" means each trade or business (whether or not
incorporated) which together with the Parent or a subsidiary of the
Parent would be deemed to be a "single employer" within the meaning of
Section 4001 of ERISA.
"ERISA PLAN" shall mean any single employer plan, as defined in Section
4001 and subject to Title IV of ERISA, which is maintained, or at any
time during the five calendar years preceding the date of this
Agreement was maintained, for employees of the Parent or a subsidiary
of the Parent or an ERISA affiliate.
"EURIBOR" means, the percentage rate per annum equal to the offered
quotation which appears on the page of the Telerate Screen which
displays the rate of the Banking Federation of the European Union for
euro (being currently page 248) for that period or such other page or
service which displays the rate of the Banking Federation of the
European Union for euro as the Facility Agent, after consultation with
the Banks and the Parent, shall select.
"EURO AMOUNT" means:
(a) in relation to a Term A2 Advance or a Revolving Advance, its
Original Euro Amount as reduced by the proportion (if any) of
such Advance which has been repaid;
(b) in relation to a Bank Guarantee issued under the Term A2
Facility or the Revolving Facility at any time:
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(i) if such Bank Guarantee is denominated in euro, the
maximum actual and contingent liability of the
Fronting Bank or the Banks thereunder or in respect
thereof at such time; and
(ii) if such Bank Guarantee is denominated in an Optional
Currency, the equivalent in euro of the maximum
actual and contingent liability of the Fronting Bank
thereunder at such time, calculated as at the later
of (1) the date which falls two Business Days before
its issue date or any renewal date or (2) the most
recent Valuation Date; and
(c) in relation to Outstandings under a Facility, the aggregate of
the Euro Amounts of each outstanding Advance and Bank
Guarantee under such Facility.
"EVENT OF DEFAULT" means any circumstance described as such in Clause
24 (EVENTS OF DEFAULT).
"EXCESS CASH FLOW" shall have the meaning given to such term in
Schedule 5 (FINANCIAL CONDITION).
"EXCHANGE BORROWERS" means the Parent, Allia International S.A.S.
(formerly called Sanitec International S.A.), Allia S.A.S. (formerly
called Allia S.A.), Sanitec Kolo Sp. z o.o. (subject to its accession
as an Additional Borrower to this Agreement in accordance with Clause
36 (ADDITIONAL BORROWER)) and any other subsidiary of the Parent
approved by all the Banks (subject to such subsidiary's accession as an
Additional Borrower to this Agreement in accordance with Clause 36
(ADDITIONAL BORROWER)).
"EXISTING AMOUNT" means, in relation to any Term A2 Advance and any two
successive Interest Periods relating thereto, the amount of such Term
A2 Advance at the beginning of the last day of the first of those
Interest Periods LESS any part thereof falling to be repaid on such
day.
"EXISTING BORROWER" has the meaning given to it in Clause 36.6
(EXCHANGE BORROWERS).
"EXPIRY DATE" means, in relation to any Bank Guarantee, the date on
which the maximum aggregate liability thereunder is reduced to zero.
"FACILITIES" means the Term Facilities and the Revolving Facility
(including, without any limitation, the Ancillary Facilities) and a
"FACILITY" shall mean any one of them.
"FACILITY OFFICE" means in relation to the Facility Agent or any Bank,
the office identified with its signature below (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it is a
party as Transferee) or such other office as it may from time to time
select by notice.
"FIN NEWCO I" means Pool Acquisition Helsinki Oy, a limited liability
company duly organised under the laws of Finland with its registered
corporate seat in Helsinki, registered under the Y-code (Business code)
1700086-7 at the Trade Register in
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Helsinki, having a share capital of EUR 8,100, which following the
Merger is known as Sanitec Oy.
"FIN NEWCO II" means Pool Financing Helsinki Oy, a limited liability
company duly organised under the laws of Finland with its registered
corporate seat in Helsinki, registered under the Y-code (Business code)
1700087-5 at the Trade Register in Helsinki, having a share capital of
EUR 8,100.
"FIN NEWCO III" means Pool Sub-Financing Helsinki Oy, a limited
liability company duly organised under the laws of Finland with its
registered corporate seat in Helsinki, registered under the Y-code
(business code) Y-1734186-4 at the Trade Register in Helsinki, having a
share capital of EUR 8,000.
"FINANCE DOCUMENTS" means this Agreement, any Borrower Accession
Agreement, any Guarantor Accession Agreement, any Borrower Transfer
Agreement, the fee letters referred to in Clauses 26.3 (UNDERWRITING
AND ARRANGEMENT FEE), 26.4 (FACILITY AGENCY FEE) and 26.5 (SECURITY
AGENCY FEE), the Security Trust Agreement, the Security Documents, the
Intercreditor Agreement, the Subordination Agreement, the Senior Notes
Loan Subordination Agreement, any hedging agreements entered into by a
Bank (but not any other financial institution) to hedge obligations of
the Obligors under the Senior Facility Agreement and/or the Junior
Facility Agreement, any document entered into in connection with any
Ancillary Facility, each Bank Guarantee and any documents evidencing
the terms of any other agreement or document that may be entered into
or executed in connection with any of the foregoing by any Obligor.
"FINANCE LEASE" means a contract treated as a finance or capital lease
in accordance with generally accepted accounting principles in the
Relevant Jurisdiction.
"FINANCE PARTIES" means the Facility Agent, the Security Agent, the
Arranger, the Fronting Bank, the Underwriter and the Banks (including
the Ancillary Banks).
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) Indebtedness for Borrowed Money;
(b) any documentary or standby letter of credit facility or
performance bond facility;
(c) any interest rate swap, currency swap, forward foreign
exchange transaction, cap, floor, collar or option transaction
or any other treasury transaction or any combination thereof
or any other transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and the amount of the Financial Indebtedness in
relation to any such transaction shall be calculated by
reference to the ▇▇▇▇-to-market valuation of such transaction
at the relevant time); and
(d) any guarantee or indemnity of any of the items referred to in
paragraphs (a) to (c) above.
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"FINANCIAL QUARTER" shall have the meaning ascribed to it in Schedule 5
(FINANCIAL CONDITION).
"FLOTATION" means the listing of, or a successful application being
made to deal in, any part of the share capital of any member of the
Group on any recognised exchange or market in any country.
"FOURTH AMENDMENT AGREEMENT" means the amendment agreement dated on or
about 13 September 2002 between, INTER ALIOS, the Parent and the
Finance Parties amending this Agreement.
"FRENCH EXCHANGE BORROWER" means any Exchange Borrower whose Relevant
Jurisdiction is France.
"FUNDING ADVANCE" means any of the Term A1 Advance, the Term B Advance
and the Term C Advance in each case to be made on the Closing Date.
"GERMAN NEWCO" means a limited liability company, incorporated under the
laws of Germany, wholly owned by a fund advised by BC Partners, set up
for the sole purpose of acquiring 0.4 per cent. of the shares in Keramag
AG, which has not and will not be trading or undertaken any commercial
activities of any kind, does not have any assets (save as contemplated
in this definition) and has not incurred and will not incur any
obligations or liabilities (actual or contingent) other than under an
option agreement to be entered into for the benefit of the Finance
Parties.
"GROUP" means the Parent and its subsidiaries from time to time and
shall for as long as Fin Newco II is a Guarantor hereunder for the
purposes of Clauses 20.5 (NO MATERIAL PROCEEDINGS), 20.14 (NO
WINDING-UP), 20.15 (NO MATERIAL DEFAULTS), 20.18 (ENVIRONMENTAL
COMPLIANCE), 20.19 (ENVIRONMENTAL CLAIMS), 20.20 (ENCUMBRANCES AND
FINANCIAL INDEBTEDNESS), 20.23 (CONSENTS AND APPROVALS), 20.24
(TAXATION), 20.29 (ISSUE OF SHARE CAPITAL), 20.30 (PENSIONS), 20.33 (NO
PURCHASE OF MARGIN STOCK), 20.34 (ERISA PLANS), 20.35 (NO INVESTMENT
COMPANY), 20.36 (NO REQUIREMENT TO INVESTMENT UNDER ENVIRONMENTAL
LOANS), 23.1.17 (PENSIONS), 24.5 (CROSS Default), 24.6 (INSOLVENCY AND
RESCHEDULING), 24.7 (WINDING-UP), 24.8 (EXECUTION OR DISTRESS), 24.9
(FAILURE TO COMPLY WITH FINAL JUDGEMENT), 24.10 (GOVERNMENTAL
INTERVENTION), 24.112 (THE GROUP'S BUSINESS), 24.16 (ENVIRONMENTAL) and
24.17 (LITIGATION) also include Fin Newco II.
"GROUP STRUCTURE CHART" means the group structure chart showing as of
the date of this Agreement and assuming that the Acquisition has been
completed:
(a) all Material Group Entities and Fin Newco II; and
(b) the jurisdiction of incorporation or establishment of each
person within (a) above.
"GUARANTOR ACCESSION AGREEMENT" means an agreement substantially in the
form set out in Schedule 7 (FORM OF BORROWER/GUARANTOR ACCESSION
AGREEMENT).
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"HEDGING STRATEGY LETTER" means the letter in terms agreed by the
Parent and the Arranger addressed to the Arranger from the Parent
setting out the approved and agreed hedging strategy.
"HOLDING ACCOUNT" means the interest bearing account (interest to be
for the account of the account holder) held with the Arranger and
identified in a letter between the Parent and the Facility Agent as a
Holding Account (or any other interest bearing account held with the
Arranger by a member of the Group which is opened after the date hereof
and after receipt by the Facility Agent of written confirmation from
the Parent that such account is to be a "Holding Account") (as the same
may be redesignated, substituted or replaced from time to time) which
is to be pledged to the Finance Parties to secure all amounts due under
the Finance Documents and from which the only withdrawals which may be
made are:
(a) for the purposes contemplated in Clause 14 (MANDATORY
PREPAYMENT); or
(b) for the purpose of repaying amounts due to the Finance Parties
under this Agreement; or
(c) for the purpose of repaying amounts due to the Junior Lenders
under the Junior Facility Agreement; or
(d) for the purpose of repaying amounts due to the Liquidity
Lender under the Liquidity Facility Agreement; or
(e) for the purpose of paying Acquisition Costs and/or costs for
the Junior Take-Out (including the Senior Notes Costs); or
(f) for the purpose of making interest payments with regard to the
Junior Facility Agreement and the Liquidity Facility
Agreement; or
(g) for the purpose of making payment for the Target Company
Shares (i) to be purchased on the stock exchange under the
Mandatory Offer, (ii) to be purchased in the market other than
pursuant to the Acquisition and the Offers or (iii) for the
purposes of re-financing purchases referred to under (ii).
"INDEBTEDNESS FOR BORROWED MONEY" means any indebtedness for or in
respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) (i) any amount raised pursuant to any issue of shares which
are expressed to be redeemable and (ii) all obligations to
purchase, retire, defease or otherwise acquire for value any
share capital of any person or any warrants, rights or options
to acquire such share capital in respect of transactions
which, in each
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such case, have the commercial effect of a borrowing or which
finance a member of the Group or the Group's operations or
capital requirements;
(e) the amount of any liability in respect of any lease or hire
purchase contract which would be a Finance Lease;
(f) the amount of any liability in respect of any advance or
deferred purchase agreement where the advance or defined
payment (i) is arranged also primarily as a method of raising
finance or financing the acquisition of that asset or service
or (ii) involves any deferral of payment of any sum for more
than six months;
(g) receivables sold or discounted (other than on a non-recourse
basis);
(h) any agreement or option to re-acquire an asset if one of the
primary reasons for entering into such agreement or option is
to raise finance;
(i) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing; and
(j) the amount of any liability in respect of any guarantee,
indemnity, letter of credit or similar assurance against
financial loss of any person, and any agreement to invest in,
lend to or purchase assets of any person in order to support
the credit of that person in respect of any of the items
referred to in paragraphs (a) to (i) above, but avoiding
double counting.
"INFORMATION MEMORANDUM" means the document concerning the Group which
will be prepared by the Arranger on the Group's behalf as set out in
more detail in the Syndication Strategy Letter in relation to this
transaction after the date hereof and distributed by the Arranger to
selected banks during general syndication.
"INITIAL INVESTORS" means BC Partners Funds.
"INSTRUCTING GROUP" means:
(a) whilst no Advances have been made or Bank Guarantees issued, a
Bank or Banks whose aggregate Commitments, calculated on the
date on which the Facility Agent seeks instructions from the
Banks, amount (or if each Bank's Commitment has been reduced
to zero, did immediately before such reduction to zero,
amount) in aggregate to more than sixty-six and two thirds per
cent. of the Total Commitments; and
(b) at any other time, a Bank or Banks to whom in aggregate more
than sixty-six and two thirds per cent. of the Outstandings is
(or, immediately prior to its repayment, was then) owed,
calculated on the date on which the Facility Agent seeks
instructions from the Banks.
"INTELLECTUAL PROPERTY" means any and all interests in any part of the
world in or relating to registered and unregistered trade marks and
service marks, domain names,
-13-
patents, registered designs, 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.
"INTERBANK MARKET" means the London Interbank Euro-currency market.
"INTERBANK RATE" means, in relation to any amount to be advanced to or
owing by an Obligor hereunder;
(a) in euro, EURIBOR; or
(b) in any other currency, LIBOR, being the percentage rate per
annum equal to the offered quotation which appears on the page
of the Telerate Screen which displays the interest rate
offered to the Interbank Market for deposits in that currency
(being currently "3740" or "3750") and for such period or such
other page or service which displays such an interest rate for
that currency as the Facility Agent, after consultation with
the Banks and the Parent, shall select; or
(c) if the Facility Agent is unable to access the relevant screen
or if a rate is not available on the relevant screen for the
currency and period (and the Facility Agent has not selected
an alternative service), the arithmetic mean (rounded upwards
to 4 decimal places) of the rates (as notified to the Facility
Agent) at which each of the Reference Banks was offered by
prime banks in the Interbank Market deposits in the currency
of such amount and for such period,
in each case as of 11.00 am on the Quotation Date for such period and
currency PROVIDED THAT, in relation to any currency other than euro,
this shall be London time.
"INTERCREDITOR AGREEMENT" means the intercreditor agreement in agreed
form to be entered into between, INTER ALIA, the Facility Agent, the
Security Agent, the Banks, the Junior Lenders, the Liquidity Lender,
Fin Newco II and the Original Borrower.
"INTEREST PERIOD" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 4.1 (INTEREST
PERIODS); and
(b) in relation to an Unpaid Sum, any of those periods mentioned
in Clause 28.1 (DEFAULT INTEREST PERIODS).
"INTRA-GROUP LOAN" means a loan from one member of the Group to another
member of the Group.
"JUNIOR DOCUMENTS" means the Junior Finance Documents as defined in the
Junior Facility Agreement.
"JUNIOR FACILITY AGREEMENT" means the Junior facility agreement dated
on or about the date hereof between, INTER ALIA, Fin Newco II and the
Junior Lenders.
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"JUNIOR FINANCE PARTIES" has the meaning given to such term in the
Junior Facility Agreement.
"JUNIOR LENDERS" means Bayerische Hypo- und Vereinsbank AG, London
Branch and any financial institution which has become a party to the
Junior Facility Agreement by assignment and/or transfer and has not
ceased to be a party thereto in accordance with the terms thereof.
"JUNIOR ON-LOAN" means the loan on terms in agreed form by which Fin
Newco II on-lends the funds advanced to it under the Junior Facility
Agreement to Fin Newco I.
"JUNIOR TAKE-OUT" means the repayment of all or part of the amounts
outstanding under the Junior Facility Agreement and the Junior On-Loan
and potentially all or part of the amounts outstanding under the
Liquidity Facility Agreement by the issuing of Senior Notes by Lux
Newco II and the on-lending of such Senior Notes net proceeds to Fin
Newco I, such loan to be subordinated to the claims of the Finance
Parties and the Liquidity Lender, on the terms of the Senior Notes Loan
Subordination Agreement.
"LEGAL DUE DILIGENCE REPORT" means the legal due diligence report
prepared by CMS ▇▇▇▇▇▇ ▇▇▇▇▇ Eschenlohr ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in connection
with the Acquisition in form and substance satisfactory to the
Arranger.
"LEGAL OPINIONS" means the Legal Opinions delivered under Schedule 3
(CONDITIONS PRECEDENT) and Schedule 8 (ADDITIONAL CONDITIONS PRECEDENT
FOR ADDITIONAL/SUBSTITUTE OBLIGORS).
"LIQUIDITY DOCUMENTS" means the Liquidity Finance Documents as defined
in the Liquidity Facility Agreement.
"LIQUIDITY FACILITY AGREEMENT" means the liquidity facility agreement
dated 6 June 2001 between Fin Newco I and the Liquidity Lender pursuant
to which the Liquidity Lender makes available to Fin Newco I a
liquidity facility.
"LIQUIDITY LENDER" means Bayerische Hypo- und Vereinsbank AG, London
Branch.
"LUX NEWCO" means Pool Acquisition Luxembourg I S.A., a stock
corporation (Societe Anonyme) duly organised under the laws of
Luxembourg with its registered corporate seat in Luxembourg, registered
under Section B numero 82054 at the Trade Registry in Luxembourg,
having a share capital of EUR 31,500.
"LUX NEWCO II" means Sanitec International S.A., ▇▇ - ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
"MANDATORY COSTS RATE" means the percentage rate per annum calculated
by the Facility Agent in accordance with Schedule 12 (MANDATORY COST
FORMULAE).
"MANDATORY OFFER" means the mandatory offer to be made by the Parent,
on the terms set out in the Mandatory Offer Documents, to acquire the
Target Company Shares not already owned by or to be acquired under the
Acquisition Agreement by the Parent, as
-15-
such offer may from time to time be amended, supplemented, revised or
renewed as permitted hereunder.
"MANDATORY OFFER DOCUMENTS" means the documents issued by the Parent
and the Target Company in connection with the Mandatory Offers which
are publicly available.
"MARGIN" means the Applicable A1 Margin, the Applicable A2 Margin, the
Applicable B Margin, the Applicable C Margin or, as the context may
require, the Applicable Revolving Margin.
"MARKET DUE DILIGENCE REPORT" means the market due diligence report
prepared by Boston Consulting Group regarding the business of the
Target Group.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, assets, condition (financial or otherwise) of any
Material Group Entity or the Group taken as a whole which is likely to
have a negative effect on the ability of an Obligor to perform its
obligations under the Finance Documents or (b) the ability of an
Obligor to perform its obligations under the Finance Documents or (c)
the validity or the enforceability of the Finance Documents or the
rights or remedies of any Finance Party thereunder.
"MATERIAL GROUP ENTITY" means any Obligor or any other member of the
Group having more than five per cent. of EBIT and/or turnover (other
than from one member of the Group to another member of the Group)
and/or gross assets of the Group when consolidated with the EBIT,
turnover (other than from one member of the Group to another member of
the Group) and gross assets of its subsidiaries as determined by
reference to the most recent available annual audited or quarterly
accounts.
"MERGER" means the merger of the Parent and the Target Company in
accordance with the laws of Finland.
"MULTI-EMPLOYER PLAN" means a multi-employer plan as defined in Section
4001(a)(3) and subject to Title IV of ERISA that is, or at any time
during the five calendar years preceding the date of this Agreement
was, maintained for employees of the Parent, a subsidiary of the Parent
or an ERISA Affiliate.
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a euro
unit) of a Participating Member State.
"NET DISPOSAL PROCEEDS" means the gross total proceeds received by
members of the Group in cash from any person from all disposals, leases
or transfers of any revenues or assets of the Group less:
(a) out of pocket expenses;
(b) the VAT paid or payable by the seller due to such sale;
(c) any income, capital gains, withholding or other taxes incurred
and required to be paid by the seller in connection with such
disposal, lease or transfers as
-16-
reasonably determined in good faith by the seller 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; and
(d) an amount equal to any amount required to meet any
liabilities, incurred upon any such disposal, lease or
transfer, to any third party.
"NEW AMOUNT" means, in relation to any Term A2 Advance and any two
successive Interest Periods relating thereto, the amount of such Term
A2 Advance at the beginning of the second of those Interest Periods, as
determined in accordance with Clause 3.6.3 (AMOUNTS OF TERM A2
ADVANCES).
"NEW BORROWER" has the meaning given to it in Clause 36.6 (EXCHANGE
BORROWERS).
"NOTICE OF DRAWDOWN" means a notice (or notices) substantially in the
form set out in Schedule 4 (NOTICE OF DRAWDOWN).
"OBLIGORS" means the Borrowers and the Guarantors and "OBLIGOR" means
any one of them.
"OFFERS" means the Mandatory Offer and the Voluntary Offer.
"OFFER DOCUMENTS" means the Voluntary Offer Documents and the Mandatory
Offer Documents.
"OPTION AGREEMENT" means the option agreement, if any, dated on or
about the date falling four years after the Closing Date between, INTER
ALIA, the Junior Lenders and the Initial Investors.
"OPTIONAL CURRENCY" means (i) Sterling, United States Dollars, Swiss
Francs, Norwegian Krones and Swedish Krones and (ii) any other currency
approved in writing by the Facility Agent (acting on the instructions
of all the Banks) as an optional currency for the purpose of any
drawdown at least three Business Days prior to delivery of the Notice
of Drawdown for such Advance and, at the time of drawdown , the
currency is:
(a) freely transferable and freely convertible into euro; and
(b) available to banks in the Interbank Market,
but, in the case of the currency of any Participating Member State, the
euro shall be the Optional Currency only in the form of the euro unit.
"ORIGINAL EURO AMOUNT" means in relation to a Term A2 Advance or a
Revolving Advance, the amount specified in the Notice of Drawdown
relating thereto, as the same may be reduced pursuant to Clause 6.6
(REDUCTION OF AVAILABLE REVOLVING COMMITMENT).
"ORIGINAL FINANCIAL STATEMENTS" means (i) in relation to the Parent its
opening balance sheet for its financial year beginning 6 April 2001 and
the audited consolidated financial
-17-
statements of the Target Group for its financial year ended 31 December
2000 and (ii) in relation to Fin Newco II its opening balance sheet for
its financial year beginning 6 April 2001 and (iii) in relation to any
Additional Obligors, its audited financial statements delivered
pursuant to Schedule 8 (ADDITIONAL CONDITIONS PRECEDENT FOR
ADDITIONAL/SUBSTITUTE OBLIGORS).
"ORIGINAL OBLIGOR" means the Original Borrower and the Original
Guarantors.
"OUTSTANDINGS" means, at any time, the aggregate of the Term
Outstandings and the Revolving Outstandings.
"PARTICIPATING MEMBER STATE" means any member state which has adopted
the euro as its lawful currency at the relevant time.
"PERMITTED DISPOSALS" means any disposal:
(a) on arm's length terms of stock in trade by a member of the
Group in its ordinary course of trade;
(b) by any member of the Group to another member of the Group
other than from an Obligor to a non-Obligor PROVIDED THAT, if
immediately prior to such disposal security is provided over
such assets pursuant to the Terms of the Security Documents,
like security shall be provided in a manner satisfactory to
the Security Agent over such assets;
(c) the disposal of 0.4 per cent. of the shares in Keramag AG on
arm's length terms to German Newco, PROVIDED THAT within 3
months from such disposal German Newco will enter into an
option agreement for the benefit of the Finance Parties
regarding those shares, such option agreement to be in form
and substance satisfactory to the Facility Agent and the
Security Agent (in each case, acting on the instructions of an
Instructing Group).
(d) for cash on arm's length terms of any surplus or obsolete
assets not required for the efficient operation of the
business by any Group member; and (e) on arm's length terms of
assets for cash by a member of the Group which disposals are
not falling within paragraph (a) to (d) above and where the
value of the net consideration received by such member of the
Group in respect of such disposal, when aggregated with all
other such disposals by members of the Group made in any
twelve month period, does not exceed EUR 10,000,000 (or its
equivalent).
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance over any assets of any member of the Target
Group (if any), existing at the Closing Date, PROVIDED THAT
the amount thereby secured is not increased and FURTHER
PROVIDED THAT such Encumbrance shall be released as soon as
possible but in any event within six months after the date on
which the Parent is holding more than 90 per cent. in the
Target Company;
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(b) any Encumbrance securing Permitted Financial Indebtedness over
or affecting (i) any asset acquired by any member of the Group
after the Closing Date and subject to which such asset is
acquired or (ii) any asset of any company which becomes a
member of the Group after the Closing Date, where such
Encumbrance is created prior to the date on which such company
becomes a member of the Group, PROVIDED THAT, in any case,
(i) such Encumbrance was not created in contemplation of
the acquisition of such asset by a member of the
Group or the acquisition of such company;
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the
acquisition of such asset by a member of the Group or
the acquisition of such company; and
(iii) such Encumbrance is removed or discharged within six
months of the date of acquisition of such asset or
such company becoming a member of the Group;
(c) any netting or set-off arrangement under a hedging agreement
permitted to be entered into hereunder 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 Encumbrance except as otherwise permitted hereunder);
(d) any Cash Collateral provided or to be provided hereunder in
connection with any Bank Guarantee;
(e) any retention of title arrangement entered into by any member
of the Group in the normal course of its trading activities on
the counterparty's standard or usual terms;
(f) any lien arising solely by operation of law and in the normal
course of business and not by reason of default;
(g) any Encumbrance arising under a Security Document or a Junior
Document;
(h) any Encumbrance 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;
(i) any Encumbrance constituted by a Finance Lease, hire purchase
or conditional sale agreement where the Financial Indebtedness
arising under each arrangement constitutes Permitted Financial
Indebtedness; and
(j) any other Encumbrances which, in aggregate in respect of all
members of the Group, secure no more than EUR 10,000,000 (or
its equivalent) of indebtedness at any time.
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"PERMITTED FINANCIAL INDEBTEDNESS" means any Financial Indebtedness:
(a) arising under or permitted pursuant to the Finance Documents,
the Junior Documents or the Liquidity Facility Agreement;
(b) to the extent covered by any Bank Guarantee issued under this
Agreement;
(c) of the Target Group in an amount of up to EUR 340,000,000 (or
its equivalent) PROVIDED THAT such Financial Indebtedness will
be as soon as possible but in any event within six months
after the date on which the Parent is holding more than 90 per
cent. in the Target Company reduced to zero and PROVIDED
FURTHER that such amount shall be reduced PRO TANTO by any
amounts drawn under (i) the Term A2 Facility, (ii) the Term B
Facilities or (iii) the Revolving Facility for the purpose of
repaying such Financial Indebtedness on the date on which such
Financial Indebtedness is repaid;
(d) arising under Permitted Transactions;
(e) secured by a Permitted Encumbrance OTHER THAN a Permitted
Encumbrance referred to under paragraph (j) and paragraph (h)
of the definition Permitted Encumbrance above;
(f) of any member of the Group in respect of Financial Leases not
exceeding at any one time in aggregate in respect of all
members of the Group EUR 5,000,000 (or its equivalent);
(g) arising under any guarantee granted to the relevant Swedish
pension authority in accordance with Swedish pension law, to
the extent only that for such guaranteed amount provisions
have been made in the relevant companies' accounts;
(h) not falling under paragraph (a) to (g) above, incurred by any
member of the Group not exceeding at any time in aggregate in
respect of all members of the Group EUR 20,000,000 (or its
equivalent).
"PERMITTED TRANSACTIONS" means:
(a) Shareholder Loans;
(b) Intra-Group Loans (i) to the Original Borrower, (ii) loans
from one Obligor to another Obligor or from one member of the
Group which is not an Obligor to another member of the Group
which is not an Obligor PROVIDED THAT the aggregate of any
such loans made to a member of the Group which is incorporated
in a jurisdiction not being a member of the OECD shall not at
any time exceed EUR 15,000,000, (iii) where the recipient is
an Obligor and requires the funds to meet its normal working
capital requirements or to meet its obligations under the
Finance Documents, the Junior Documents or the Liquidity
Facility Agreement and (iv) up to EUR 5,000,000 (or its
equivalent) in aggregate with respect to any other Intra-Group
Loans;
-20-
(c) the payment or declaration of any dividend, return on capital,
repayment of capital contributions or other distributions by
any member of the Group other than (i) by the Parent or (for
the avoidance of doubt) Fin Newco II or (ii) by a member of
the Group which is an Obligor to another member of the Group
which is not an Obligor (except to any person which is not a
member of the Group and is either a shareholder on the Closing
Date or becomes a shareholder or any other equity participant
or has any other equity participation in such member of the
Group pursuant to any transaction permitted hereunder) save
where such payments are required to ultimately upstream the
relevant funds to an Obligor.
(d) the purchase, subscription for or other acquisition of any
shares (or other securities or any interest therein) in (i)
the Target Company by the Parent, (ii) any Obligor by any
other Obligor and (iii) any member of the Group which is not
an Obligor by any other member of the Group which is not an
Obligor PROVIDED THAT, in each case, if any such shares (or
other securities or any other interest therein) are issued by
a member of the Group whose shares are subject to an
Encumbrance constituted by the Security Documents, such shares
(or other securities or any interest therein) are made subject
to like security satisfactory to the Security Agent (acting on
the instructions of an Instructing Group) to secure all the
obligations of the Obligors under the Finance Documents;
(e) the Junior On-Loan;
(f) the Junior Take-Out;
(g) the PIK On-Loan;
(h) the PIK Take-Out;
(i) the PIK Loan Agreement;
(j) the PIK Loan Restructuring and the Shareholder Loan
Restructuring;
(k) the giving by any member of the Group of any guarantee,
indemnity or bond in respect of the liabilities or obligations
of any member of the Group not being Financial Indebtedness
and arising in the ordinary course of business PROVIDED THAT
no Obligor shall give any guarantee, indemnity or bond in
respect of the liabilities or obligations of any member of the
Group which is not an Obligor; and
(l) Permitted Treasury Transactions.
"PERMITTED TREASURY TRANSACTIONS" means the Treasury Transactions and
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 exposure.
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"PIK LOAN" means the EUR 60,000,000 loan to Fin Newco III or
subsequently Lux Newco with a maturity of 11 years at a maximum
interest rate of 22% per annum, such interest to be capitalised
semi-annually and payable at maturity.
"PIK LOAN AGREEMENT" has the meaning given to such term in the
Subordination Agreement.
"PIK LOAN RESTRUCTURING" means the restructuring of the PIK Loan so
that Fin Newco III as initial borrower is replaced by Lux Newco as new
borrower prior to or concurrently with the Junior Take-Out together
with any steps required to be taken in connection therewith or in
consequence thereof and to facilitate the same.
"PIK ON-LOAN" means the loan on terms in agreed form by which Fin Newco
II on-lends the funds advanced to it by Fin Newco III to Fin Newco I.
"PIK TAKE-OUT" means the repayment of part of the amounts outstanding
under this Agreement by borrowing under the PIK Loan by Fin Newco III
and the on-lending of the net proceeds from such PIK Loan to Fin Newco
II and from Fin Newco II to Fin Newco I pursuant to the PIK On-Loan
which shall be subordinated on the terms of the Subordination Agreement
and assigned to or for the benefit of the Finance Parties, the
Liquidity Lender and the Junior Finance Parties on the terms of
Assignment Agreement I.
"POTENTIAL EVENT OF DEFAULT" means any event which may reasonably
likely become (with the passage of time, the giving of notice, the
making of any determination hereunder or any combination thereof) an
Event of Default.
"PROPORTION" means, in relation to a Bank:
(a) whilst no Advance or Bank Guarantee is outstanding, the
proportion borne by its Commitment to the Total Commitments
(or, if the Total Commitments are then zero, by its Commitment
to the Total Commitments immediately prior to their reduction
to zero); or
(b) whilst at least one Advance or Bank Guarantee is outstanding,
the proportion borne by its share of the Outstandings to the
Outstandings.
"PUSH-DOWN ADVANCE" means a Term Advance made or to be made to an
Approved Additional Borrower pursuant to Clauses 2.6 (DEBT PUSH-DOWN)
and 3.1 (UTILISATION CONDITIONS FOR PUSH-DOWN Advances) or transferred
to an Exchange Borrower pursuant to Clauses 36.6 (EXCHANGE BORROWERS)
and 36.7 (BORROWER EXCHANGE MECHANISM).
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined, the Business Day which is two Business Days
before the first day of such period unless market practice differs in
the Interbank Market in which case the Quotation Date for that currency
will be determined by the Facility Agent in accordance with market
practice in the Interbank Market (and if quotations would normally be
given by leading banks in the Interbank Market on more than one day,
the Quotation Date shall be the last of those days).
-22-
"REFERENCE BANKS" means Bayerische Hypo- und Vereinsbank AG and the
principal offices of such other banks as may from time to time be
agreed between the Parent and the Facility Agent acting on the
instruction of an Instructing Group.
"RELEVANT EXCHANGE BORROWER" means the Original Borrower, Sanitec Kolo
Sp. z o.o. and any subsidiary of the Parent approved by all the Banks
which has acceded as an Additional Borrower to this Agreement in
accordance with Clause 36 (ADDITIONAL BORROWER) and to which each Bank
under the Term B1 Facility is permitted by applicable law and such
Bank's constitutive documents to lend.
"RELEVANT JURISDICTION" means, in respect of any person, the
jurisdiction of the country in which such person is incorporated and,
if different, where it is resident or has its principal place of
business, and each jurisdiction or state in which it owns or leases
property or otherwise conducts its business.
"RELEVANT PERIOD" shall have the meaning given to such term in Schedule
5 (FINANCIAL Condition).
"REPAYMENT DATE" means, in relation to any Revolving Advance, the last
day of the Term thereof.
"REPEATED REPRESENTATIONS" means each of the representations set out in
Clause 20.1 (STATUS) to Clause 20.8 (VALIDITY AND ADMISSIBILITY IN
EVIDENCE) and Clause 20.14 (NO WINDING-UP) to Clause 20.36 (NO
REQUIREMENT TO INVESTMENT UNDER ENVIRONMENTAL LAWS) other than Clause
20.17 (INFORMATION MEMORANDUM).
"REPORTABLE EVENT" means a reportable event as defined in Section
4043(b) of ERISA or an event described in Section 4062(e) or Section
4063(a) of ERISA.
"REPORTS" means the Accountants' Report, the Environmental Report, the
Legal Due Diligence Report, the Market Due Diligence Report, the
Transaction Structure Report, the Tax Due Diligence Report and the
Business Plan.
"RESIGNATION NOTICE" means a notice substantially in the form set out
in Schedule 9 (FORM OF RESIGNATION NOTICE).
"REVOLVING ADVANCE" means a cash advance made or to be made by the
Revolving Banks under the Revolving Facility.
"REVOLVING BORROWERS" means the Original Borrower and each Additional
Borrower acceding hereto as a Borrower under the Revolving Facility.
"REVOLVING COMMITMENT" means, in relation to a Revolving Bank at any
time and save as otherwise provided herein, the amount set opposite its
name under the heading "Revolving Commitment" in Part II of Schedule 1
(THE BANKS).
"REVOLVING FACILITY" means the multicurrency revolving loan and bank
guarantee facility granted to the Borrowers under sub-clause 2.1.6 in
this Agreement by the Revolving Banks.
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"REVOLVING OUTSTANDINGS" means, at any time, the aggregate Euro Amounts
of each outstanding Revolving Advance, the aggregate Euro Amount of
each outstanding Bank Guarantee issued under the Revolving Facility and
the Ancillary Outstandings of the Ancillary Banks at such time.
"REVOLVING TERMINATION DATE" means 26 April 2008.
"ROLLOVER ADVANCE" means:
(a) a Revolving Advance which is used to refinance a maturing
Revolving Advance and which is the same amount and the same
currency as such maturing Revolving Advance and is to be drawn
on the day such maturing Revolving Advance is to be repaid; or
(b) a Revolving Advance which is used to satisfy demand made by
the Facility Agent pursuant to a drawing under a Bank
Guarantee.
"SECURITY" means the security from time to time constituted by or
pursuant to the Security Documents.
"SECURITY DOCUMENTS" means each of the documents in agreed form
delivered to the Facility Agent listed in part (F) of Schedule 3
(CONDITIONS PRECEDENT), in each case together with 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 whether by way of personal covenant,
charge, security interest, mortgage, pledge or otherwise.
"SECURITY TRUST AGREEMENT" means the security trust agreement entered
into on or about the date hereof between, INTER ALIA, the Banks, the
Arranger, the Facility Agent, the Security Agent and the Obligors.
"SENIOR NOTES" means any notes issued by Lux Newco II which either:
(a) satisfy the following conditions:
(i) the aggregate gross proceeds of such notes do not exceed the
total amount outstanding under the Junior Facility Agreement
and the Liquidity Facility Agreement (including in each case
capitalised interest) at the time such gross proceeds are
advanced (or its equivalent in other currencies);
(ii) such notes are not guaranteed by any of the subsidiaries of
Lux Newco II;
(iii) the cash interest contracted to be paid on such notes does not
exceed the higher of (i) the maximum amount of cash interest
possibly payable under the Junior Facility Agreement (such
maximum cash interest to be determined by (a) the maximum
margin and (b) the Interbank Rate applicable on the date of
the refinancing of the Junior Facility Agreement) and (ii) 14%
per annum;
-24-
(iv) such notes do not mature before the Final Maturity Date (as
defined in the Junior Facility Agreement) and no amount of
principal is scheduled to be paid thereunder before the Final
Maturity Date (as defined in the Junior Facility Agreement);
(v) the net proceeds of such notes are immediately used to make a
Senior Notes On-Loan (which is subject to the terms of the
Senior Notes Loan Subordination Agreement) and prepay in full
the total amount outstanding under the Junior Facility
Agreement at the time such net proceeds are advanced; or
(b) where deviating from (a) are in respect of such deviation on
terms and conditions which have been approved in writing by an
Instructing Group (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).
"SENIOR NOTES COSTS" means all fees, out-of-pocket costs and expenses,
stamp, registration and other taxes incurred in connection with the
issue and exchange of the Senior Notes, which will be paid for out of
funds contributed to the Parent by the Initial Investors as equity
which funds are prior to their application held on the Holding Account.
"SENIOR NOTES LOAN AGREEMENT" has the meaning given to such term in the
Senior Notes Loan Subordination Agreement.
"SENIOR NOTES LOAN SUBORDINATION AGREEMENT" means the subordination
agreement in agreed form between, INTER ALIA, Lux Newco II, Dutch
Newco, Fin Newco I, the Finance Parties, the Liquidity Lender and the
Junior Finance Parties.
"SHAREHOLDER LOANS" means the loans made or to be made pursuant to a
shareholder loan agreement in an aggregate amount of at least EUR
299,803,099.95 made by the Initial Investors and subordinated to the
claims of the Finance Parties pursuant to the Subordination Agreement
or otherwise in form and substance satisfactory to the Facility Agent.
"SHAREHOLDER LOAN RESTRUCTURING" means the restructuring of the
Shareholder Loans by way of the transfer of the Initial Investors'
rights thereunder to Lux Newco II prior or concurrently with the Junior
Take-Out together with any steps required to be taken in connection
therewith or in consequence thereof and to facilitate the same,
PROVIDED THAT following such restructuring the structure of the
Shareholder Loans shall be such that they are granted from the Initial
Investors to Lux NewCo, from Lux NewCo to Lux Newco II and from Lux
Newco II to Fin NewCo I.
"SHAREHOLDERS AGREEMENT" means the subscription and shareholders
agreement with respect to the Parent to be entered into in connection
with the putting in place of certain management incentive schemes, if
any.
"SHARE SALE" means any transfer of shares in the Parent or in any of
its holding companies.
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"SPOT RATE" means, in respect of any two currencies and any date, the
rate of exchange as determined by the Facility Agent, for the purchase
of one of those currencies in the London foreign exchange market with
the other of those currencies at or about 11.00 am for delivery two
Business Days thereafter.
"SUBORDINATION AGREEMENT" means the subordination agreement dated 26
April 2001 between, INTER ALIA, the Parent, Fin Newco II, the Banks and
the Initial Investors as amended and restated from time to time.
"SUBSEQUENT PARTICIPANT" means any member state that adopts the euro as
its lawful currency after the date hereof.
"SYNDICATION DATE" means the day specified by the Arranger as the day
on which general syndication of the Facilities is completed.
"SYNDICATION LETTER" means the letter in agreed terms addressed to the
Facility Agent from the Parent setting out the details of support and
assistance to be provided to the Arranger during the syndication of the
Facilities.
"TARGET" means Trans-European Automated Real-Time Gross Settlement
Express Transfer System.
"TARGET COMPANY" means Sanitec Oyj.
"TARGET COMPANY SHARES" means shares in the Target Company held or to
be held by the Parent from time to time.
"TARGET DAY" means a day on which payment in euro are settled in the
TARGET.
"TARGET GROUP" means the Target Company and each of its subsidiaries.
"TERM" means, save as otherwise provided herein:
(a) in relation to a Revolving Advance, the period for which such
Revolving Advance is borrowed, as specified in the Notice of
Drawdown relating thereto; and
(b) in relation to any Bank Guarantee, the period from its
Utilisation Date until its Expiry Date.
"TERM A1 ADVANCE" means an advance (as from time to time consolidated,
divided or reduced by repayment) made or to be made by the Term Banks
under the Term A1 Facility.
"TERM A2 ADVANCE" means an advance (as from time to time consolidated,
divided or reduced by repayment) made or to be made by the Term Banks
under the Term A2 Facility.
"TERM B ADVANCE" means a Term B1 Advance or a Term B 2 Advance.
-26-
"TERM B1 ADVANCE" means an advance (as from time to time consolidated,
divided or reduced by repayment) made or to be made by the Term B1
Banks under the Term B1 Facility.
"TERM B2 ADVANCE" means an advance (as from time to time consolidated,
divided or reduced by repayment) made or to be made by the Term B2
Banks under the Term B2 Facility.
"TERM C ADVANCE" means an advance (as from time to time consolidated,
divided or reduced by repayment) made or to be made by the Term Banks
under the Term C Facility.
"TERM ADVANCE" means a Term A1 Advance, a Term A2 Advance, a Term B1
Advance, a Term B2 Advance or a Term C Advance made by the Term Banks
under a Term Facility.
"TERM AVAILABILITY PERIOD" means
(a) in relation to the Term A1 Facility, the period from and
including the date hereof to the earlier of (i) the first
Business Day on which the Available Term A1 Commitment of each
of the Term Banks is zero and (ii) the date falling twelve
months after the date hereof;
(b) in relation to the Term A2 Facility, the period from and
including the date hereof to and including the earlier of (i)
the first Business Day on which the Available Term A2
Commitment of each of the Term Banks is zero and (ii) the date
falling twelve months after the date hereof;
(c) in relation to the Term B1 Facility, the period from and
including the date hereof, to and including 15 June 2001;
(d) in relation to the Term B2 Facility, the period from and
including the date hereof to and including 15 June 2001; and
(e) in relation to the Term C Facility, the period from and
including the date hereof to and including the earlier of (i)
the first Business Day on which the Available Term C
Commitment of each of the Term Banks is zero and (ii) the date
falling twelve months after the date hereof.
"TERM A1 COMMITMENT" means, in relation to a Term Bank at any time and
save as otherwise provided herein, the amount set out opposite its name
under the heading "TERM A1 COMMITMENT" in Part I of Schedule 1 (THE
BANKS).
"TERM A2 COMMITMENT" means, in relation to a Term Bank at any time and
save as otherwise provided herein, the amount set out opposite its name
under the heading "TERM A2 COMMITMENT" in Part I of Schedule 1 (THE
BANKS) PROVIDED THAT the Term A2 Commitment of each Term Bank shall be
reduced on each date set out in Clause 11.1 (TERM REPAYMENT
INSTALMENTS) by the percentage set out opposite such date under the
heading "Percentage of Term A2 Outstandings".
-27-
"TERM B1 BANKS" means those Term Banks whose names are set out in Part
III of Schedule 1 (THE BANKS).
"TERM B2 BANKS" means those Term Banks whose names are set out in Part
IV of Schedule 1 (THE BANKS).
"TERM B1 COMMITMENT" means, in relation to a Term B1 Bank at any time
and save as otherwise provided herein, the amount set out opposite its
name under the heading "TERM B1 COMMITMENT" in Part III of Schedule 1
(THE BANKS) PROVIDED THAT the Term B1 Commitment of each Term B1 Bank
shall be reduced on each date set out in Clause 11.1 (TERM REPAYMENT
INSTALMENTS) by the percentage set out opposite such date under the
heading "Percentage of Term B1 Outstandings and Term B2 Outstandings".
"TERM B2 COMMITMENT" means, in relation to a Term B2 Bank at any time,
zero.
"TERM C COMMITMENT" means, in relation to a Term Bank at any time and
save as otherwise provided herein, the amount set out opposite its name
under the heading "TERM C COMMITMENT" in Part I of Schedule 1 (THE
BANKS) PROVIDED THAT the Term C Commitment of each Term Bank shall be
reduced on each date set out in Clause 11.1 (TERM REPAYMENT
INSTALMENTS) by the percentage set out opposite such date under the
heading "Percentage of Term C Outstandings".
"TERM COMMITMENT" means, in relation to a Term Bank at any time and
save as otherwise provided herein, the aggregate of its Term A1
Commitment, its Term A2 Commitment, its Term B1 Commitment, its Term B2
Commitment and its Term C Commitment.
"TERM A1 FACILITY" means the term loan and bank guarantee facility
granted to the Borrowers under sub-clause 2.1.1 of this Agreement by
the Term Banks.
"TERM A2 FACILITY" means the multicurrency term loan and bank guarantee
facility granted to the Borrowers under sub-clause 2.1.2 of this
Agreement by the Term Banks.
"TERM B FACILITIES" means the Term B1 Facility and the Term B2
Facility.
"TERM B1 FACILITY" means the term loan and bank guarantee facility
granted to the Borrowers under sub-clause 2.1.3 of this Agreement by
the Term B1 Banks.
"TERM B2 FACILITY" means the term loan facility granted to the Parent
under sub-clause 2.1.4 of this Agreement by the Term B2 Banks.
"TERM C FACILITY" means the term loan and bank guarantee facility
granted to the Borrowers under sub-clause 2.1.5 of this Agreement by
the Term Banks.
"TERM FACILITIES" means the Term A1 Facility, the Term A2 Facility, the
Term B Facilities and the Term C Facility and "TERM FACILITY" shall
mean any one of them.
"TERM A1 OUTSTANDINGS" means, at any time, the aggregate amount of the
outstanding Term A1 Advances and the aggregate amount of the maximum
actual and contingent
-28-
liability of the Fronting Bank in respect of each outstanding Bank
Guarantee issued under the Term A1 Facility.
"TERM A2 OUTSTANDINGS" means, at any time, the aggregate Euro Amount of
each outstanding Term A2 Advance and the aggregate Euro Amount of each
outstanding Bank Guarantee issued under the Term A2 Facility.
"TERM B OUTSTANDINGS" means, at any time, the aggregate amount of the
Term B1 Outstandings and the Term B2 Outstandings.
"TERM B1 OUTSTANDINGS" means at any time, the aggregate amount of the
Term B1 Advances.
"TERM B2 OUTSTANDINGS" means, at any time, the aggregate amount of the
Term B2 Advances.
"TERM C OUTSTANDINGS" means, at any time, the aggregate amount of the
outstanding Term C Advances and the aggregate maximum actual or
contingent liability of the Fronting Bank in respect of such
outstanding Bank Guarantee issued under the Term C Facility.
"TERM OUTSTANDINGS" means, at any time, the aggregate of the Term A1
Outstandings, the Term A2 Outstandings, the Term B Outstandings and the
Term C Outstandings.
"TERM REPAYMENT DATE" means each of the dates specified in Clause 11.1
(TERM REPAYMENT INSTALMENTS), PROVIDED THAT if such date is not a
Business Day, it shall be deemed to be the next succeeding Business Day
and further PROVIDED THAT if such succeeding Business Day shall fall in
the following month, then the Term Repayment Date shall be deemed to be
the Business Day preceding the relevant date specified in Clause 11.1
(TERM REPAYMENT INSTALMENTS).
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
"TOTAL NET DEBT" shall have the meaning given to such term in Schedule
5 (FINANCIAL CONDITION).
"TRANSACTION STRUCTURE REPORT" means the transaction tax and structure
report prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in form and substance satisfactory
to the Arranger and amongst others setting out the feasibility (legal,
from a tax perspective and otherwise) of upstreaming of cash and debt
push-down by distribution of retained earnings within the Group and
either (a) addressed to the Arranger and the Facility Agent on behalf
of itself and the Banks from time to time or (b) supplemented by a
reliance letter agreeing to extend the benefit of the report to each of
the Arranger, the Facility Agent and the Banks from time to time.
"TRANSFER CERTIFICATE" means a certificate substantially in the form
set out in Schedule 2 (FORM OF TRANSFER CERTIFICATE) signed by a Bank
and a Transferee under which:
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(a) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights, benefits and obligations
hereunder upon and subject to the terms and conditions set out
in Clause 35.3 (ASSIGNMENTS AND TRANSFERS BY BANKS); and
(b) such Transferee undertakes to perform the obligations it will
assume as a result of the delivery of such certificate to the
Facility Agent as contemplated in Clause 35.5 (TRANSFERS BY
BANKS).
"TRANSFER DATE" means, in relation to any Transfer Certificate, the
date for the making of the transfer as specified in such Transfer
Certificate.
"TRANSFEREE" means a person to which a Bank seeks to transfer by
transfer and assumption all or part of such Bank's rights, benefits and
obligations hereunder.
"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
entered into on or after the Closing Date.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957,
as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty
(which was signed at Maastricht on 1 February 1992 and came into force
on 1 November 1993) and the Amsterdam Treaty (which was signed in
Amsterdam on 2 October 1997 and came into force on 1 May 1999).
"TRUSTEE", in relation to the Senior Notes at any point in time, means
any trustee then acting on behalf of the holders of the Senior Notes.
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 28.1 (DEFAULT INTEREST PERIODS).
"UTILISATION DATE" means, in relation to any Advance, the date on which
it is to be made and, in relation to a Bank Guarantee, the date on
which it is to be issued.
"VALUATION DATE" means the first Business Day which falls six months
after the date hereof and each day falling at six monthly intervals
thereafter.
"VENDORS" means the sellers pursuant to the Acquisition Agreement.
"VOLUNTARY OFFER" means the voluntary offer to be made by the Parent,
on the terms set out in the Voluntary Offer Documents, to acquire the
Target Company Shares not already owned by or to be acquired under the
Acquisition Agreement by the Parent, as such offer may from time to
time be amended, supplemented, revised or renewed as permitted
hereunder.
"VOLUNTARY OFFER DOCUMENTS" means the documents issued by the Parent
and the Target Company in connection with the Voluntary Offers which
are publicly available.
-30-
"WARRANTS" means warrants in existence at the date hereof with regard
to 3,300,000 shares in the Target Company.
1.2 INTERPRETATION
Any reference in this Agreement to:
the "FACILITY AGENT", the "ARRANGER", the "SECURITY AGENT", any "BANK",
the "PARENT", the "ORIGINAL BORROWER", the "ORIGINAL GUARANTOR", any
"BORROWER", any "GUARANTOR", "FIN NEWCO I", "FIN NEWCO II", "FIN NEWCO
III", "DUTCH NEWCO", "LUX NEWCO" or "LUX NEWCO II " shall be construed
so as to include it and any subsequent successors and permitted
transferees and assigns in accordance with their respective interests;
a document is in "AGREED FORM" if it is initialled as such on or before
the Closing Date for the purposes of identification by or on behalf of
the Parent and the Arranger or is executed on or before the Closing
Date by the Parent and the Arranger or, if not so executed or
initialled, is prior to the Closing Date in form and substance
satisfactory to the Arranger and thereafter satisfactory to the
Facility Agent;
"ASSETS" includes present and future properties, revenues and rights of
every description;
"CONTINUING", in relation to an Event of Default, shall be construed as
a reference to an Event of Default which has not been waived in
accordance with the terms hereof or remedied and, in relation to a
Potential Event of Default, one which has not been remedied within the
relevant grace period or waived in accordance with the terms hereof;
"DISPOSAL" shall be construed as any sale, lease, transfer, conveyance,
assignment or other disposal and "DISPOSE" and "DISPOSALS" shall be
construed accordingly, but the payment of cash permitted hereunder
shall not constitute a disposal;
the "EQUIVALENT" on any date in one currency (the "FIRST CURRENCY") of
an amount denominated in another currency (the "SECOND CURRENCY") is a
reference to the amount of the first currency which could be purchased
with the amount of the second currency at the Spot Rate;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
a "LAW" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgement, treaty, regulation,
directive, guideline, by-law, order or any other legislative measure of
any government, supranational, local government, statutory or
regulatory body or court;
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a "MEMBER STATE" shall be construed as a reference to a member state of
the European Union;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the day preceding the numerically corresponding day
in the next succeeding calendar month save that, where any such period
would otherwise end on a day which is not a Business Day, it shall end
on the next succeeding Business Day, unless that day falls in the
calendar month succeeding that in which it would otherwise have ended,
in which case it shall end on the immediately preceding Business Day
(and references to "MONTHS" shall be construed accordingly);
a Bank's "PARTICIPATION", in relation to a Bank Guarantee, shall be
construed as a reference to the rights and obligations of such Bank in
relation to such Bank Guarantee, as the case may be, as are expressly
set out in this Agreement;
a "PERSON" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be,
the corresponding derivative form thereof);
a "SUBSIDIARY" of a company or corporation shall be construed as a
reference to any company, corporation or partnership:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital or partnership
interest 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 these purposes, a company, corporation or partnership shall be
treated as being controlled by a company or corporation if that other
company or corporation is able to direct its affairs and/or to control
the composition of its board of directors or equivalent body;
a "SUCCESSOR" shall be construed so as to include an assignee (other
than an assignment pursuant to Clause 35.4 (ASSIGNMENTS BY BANKS)) or
successor in title of such party and any person who under the laws of
its jurisdiction of incorporation or domicile has assumed the rights
and obligations of such party under this Agreement or to which, under
such laws, such rights and obligations have been transferred;
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"TAX" shall be construed so as to include any tax levy, impost, duty or
other charge 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);
"VAT" shall be construed as a reference to value added tax including
any similar tax which may be imposed in place thereof from time to
time;
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which
such company or corporation carries on business including the seeking
of liquidation, winding-up, reorganisation, dissolution,
administration, general arrangement, general adjustment, protection or
relief of debtors.
1.3 CURRENCY SYMBOLS
"EUR" and "EURO" mean the single currency unit of Participating Member
States, "EURO UNIT" means the currency unit of the "EURO". "GBP" and "
STERLING" denotes the lawful currency of the United Kingdom. "SFR" and
"SWISS FRANCS" denotes the lawful currency of Switzerland. "NKR" and
"NORWEGIAN KRONES" denotes the lawful currency of Norway. "SKR" and
"SWEDISH Krones" denotes the lawful currency of Sweden. "USD" and
"UNITED STATES DOLLARS" denotes the lawful currency of the United
States of America.
1.4 AGREEMENTS AND STATUTES
Any reference in this Agreement to:
this Agreement or any other agreement or document shall be construed as
a reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may from time to
time be, amended, varied or supplemented; and
a statute or treaty shall be construed as a reference to such statute
or treaty as the same may have been, or may from time to time be,
amended or, in the case of a statute, re-enacted.
1.5 HEADINGS
Clause, Part and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a
contrary indication appears, be a reference to London time.
1.7 BANK GUARANTEES
1.7.1 A Bank Guarantee being "REPAID" or "PREPAID" is effected by
(a) providing the Fronting Bank with cash cover in the
currency in which that Bank Guarantee is denominated, (b) by
reducing, whether by partial cancellation or otherwise, (in
accordance with the terms of this Agreement and the relevant
Bank Guarantee) the amount that may be demanded under that
Bank Guarantee (or by such amount automatically reducing in
accordance with the terms of the relevant
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Bank Guarantee) or (c) by cancelling that Bank Guarantee by
returning the original to the Fronting Bank together with
written confirmation (in form and substance satisfactory to
the Fronting Bank acting reasonably) that the Fronting Bank
has no further liability under that Bank Guarantee and
"REPAYABLE", "REPAYMENT" and any other derivative of "REPAID"
or "PREPAID" shall be construed accordingly.
1.7.2 "CASH COVER" is provided, in whole or in part, in respect of a
Bank Guarantee at any time by paying an amount, in the
currency in which that Bank Guarantee is denominated, equal to
the whole or a part of the outstanding amount of such Bank
Guarantee at such time to the Fronting Bank and the Fronting
Bank paying the amount so received by it into an account with
it in the name of the relevant Borrower from which the only
withdrawals which may be made are withdrawals to pay the
Fronting Bank's amount due and payable to it under this
Agreement following any payment made by it under such Bank
Guarantee and in respect of which account and all claims and
choses in action arising thereunder, the relevant Borrower has
granted to the Fronting Bank pursuant to agreed upon
documentation, a first priority security interest in order to
secure all amounts which may become payable by such relevant
Borrower in respect of such Bank Guarantee.
1.7.3 An amount "OUTSTANDING" at any time under or in respect of a
Bank Guarantee is the maximum amount that may be demanded
under that Bank Guarantee at that time in accordance with its
express provisions less (a) the aggregate amount of cash cover
held in relation to that Bank Guarantee at that time and (b)
(save to the extent that this is taken into account in the
express provisions of that Bank Guarantee) the aggregate of
all payments made by the Fronting Bank pursuant to demands
made under that Bank Guarantee on or prior to such time (save
to the extent that the Fronting Bank has not been reimbursed
in respect of the same (unless the context otherwise
requires)) and each provision of this Agreement which requires
reference to the concept contained in this sub-paragraph 1.7.3
shall be construed accordingly.
2. THE FACILITIES
2.1 GRANT OF THE FACILITIES
2.1.1 The Term ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers, upon the terms and
subject to the conditions hereof, a term loan and bank
guarantee facility in an aggregate amount of up to EUR
53,800,000 (the "TERM A1 FACILITY").
2.1.2 The Term ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers, upon the terms and
subject to the conditions hereof, a multicurrency term loan
facility in an aggregate amount of up to EUR 291,200,000 or
its equivalent from time to time in Optional Currencies (the
"TERM A2 FACILITY"); the Term A2 Facility is divided in three
tranches: an (a) tranche in an amount of up to EUR 20,000,000,
a (b) tranche in an amount of up to EUR 31,770,586 and a (c)
tranche in an amount of up to EUR 239,429,414; each of the
tranches (a) and (b) shall be drawn by one
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separate Advance, such Advances not to be consolidated with
any other Term A2 Advance (notwithstanding any other
provisions of this Agreement) for the avoidance of doubt each
of these Advances is a Term A2 Advance.
2.1.3 The Term B1 ▇▇▇▇▇ ▇▇▇▇▇ to the Exchange Borrowers, upon the
terms and subject to the conditions hereof, a term loan
facility in an aggregate amount of up to EUR 84,136,304 (the
"TERM B1 FACILITY").
2.1.4 The Term B2 ▇▇▇▇▇ ▇▇▇▇▇ to the Parent, upon the terms and
subject to the conditions hereof, a term loan facility in an
aggregate amount of up to EUR 25,863,696 (the "TERM B2
FACILITY").
2.1.5 The Term ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers, upon the terms and
subject to the conditions hereof, a term loan facility in an
aggregate amount of up to EUR 110,000,000 (the "TERM C
FACILITY").
2.1.6 The Revolving ▇▇▇▇▇ ▇▇▇▇▇ to the Revolving Borrowers, upon the
terms and subject to the conditions hereof, a multicurrency
revolving loan and bank guarantee facility in an aggregate
amount of EUR 50,000,000 (or its equivalent from time to time
in Optional Currencies) (the "REVOLVING FACILITY").
2.1.7 The Ancillary Banks may with the prior consent of the Facility
Agent and the Parent make available Ancillary Facilities in
accordance with Clause 8 (ANCILLARY FACILITIES).
2.2 PURPOSE AND APPLICATION
2.2.1 Subject to Clause 2.2.4, each of the Term A1 Facility, the
Term B Facilities and the Term C Facility is intended for the
purpose of financing (or with regard to (iv) below for the
purpose of re-financing) in part the purchase of the Target
Company Shares by the Parent (i) in accordance with the terms
of the Acquisition Agreement, (ii) by way of public voluntary
and mandatory tender pursuant to the Offers, (iii) by way of
payments to shareholders during the squeeze out process, (iv)
in the market other than pursuant to the Offers or the
Acquisition Agreement, in each case up to a maximum share
price of EUR 14.6 per undiluted ordinary share.
2.2.2 Subject to Clause 2.2.4, the Term A2 Facility and up to EUR
6,200,000 of the Term B Facilities is intended for the purpose
of directly or indirectly financing in part the refinancing of
existing Financial Indebtedness of the Target Group, PROVIDED
THAT the (a) tranche of the Term A2 Facility is intended for
the purpose of refinancing directly or indirectly any
Financial Indebtedness of the Target Company incurred for the
financing of the acquisition of any member of the Group
incorporated under the laws of The Netherlands, the (b)
tranche of the Term A2 Facility is intended for the purpose of
refinancing directly or indirectly any Financial Indebtedness
of the Target Company incurred for the financing of the
acquisition of any member of the Group incorporated under the
laws of France and the (c) tranche of the Term A2 Facility
together with up to
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EUR 6,200,000 of the Term B Facilities is intended for the
purpose of directly or indirectly refinancing in part any
other existing Financial Indebtedness.
2.2.3 The Revolving Facility is intended for financing the working
capital and general corporate purposes requirements of the
Group.
2.2.4 Push-Down Advances to Approved Additional Borrowers in
accordance with Clauses 2.6 (DEBT PUSH-DOWN) and 3.1
(UTILISATION CONDITIONS FOR PUSH-DOWN ADVANCES) shall be
utilised to fund the making of a dividend in an amount at
least equal to the amount of such Push-Down Advance.
2.2.5 Accordingly, each Borrower shall utilise the Facilities only
as to so apply all amounts raised by it hereunder and none of
the Finance Parties shall be obliged to concern themselves
with such application.
2.3 CONDITIONS PRECEDENT
2.3.1 Save as the Banks may otherwise agree, none of the Borrowers
may deliver any Notice of Drawdown unless the Facility Agent
has confirmed to the Parent and the Banks that it has received
all of the documents and other evidence listed in Schedule 3
(CONDITIONS PRECEDENT) and has confirmed that each is in
agreed form, or if there is no such form, in form and
substance satisfactory to the Facility Agent.
2.3.2 On the date of this Agreement the Parent shall deliver or
procure the delivery of all of the documents listed in Part A1
of Schedule 3 (CONDITIONS PRECEDENT), each in form and
substance satisfactory to the Facility Agent.
2.4 BANKS' OBLIGATIONS SEVERAL
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of
an Obligor towards any other party hereto nor shall any other party be
liable for the failure by such Bank to perform its obligations
hereunder.
2.5 BANKS' RIGHTS SEVERAL
The amounts outstanding at any time hereunder from the Obligors to any
of the other parties hereto shall be a separate and independent debt,
and except as otherwise stated herein each such party shall be entitled
to protect and enforce its individual rights arising out of this
Agreement independently of any other party, and it shall not be
necessary for any party hereto to be joined as an additional party in
any proceedings for such purposes PROVIDED THAT if any Bank commences
proceedings in respect of the Finance Documents it shall promptly
notify the other Banks through the Facility Agent and the Facility
Agent shall notify the other Banks accordingly.
2.6 DEBT PUSH-DOWN
2.6.1 Following its accession as an Additional Borrower to this
Agreement in accordance with Clause 36 (ADDITIONAL BORROWER),
each Approved Additional Borrower may, subject to Clause 2.6.2
and Clause 3.1 (UTILISATION CONDITIONS FOR PUSH-DOWN
ADVANCES), re-draw by way of cash advance amounts already
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utilised by the Parent under the Term B1 Facility and the Term
C Facility as set out in more detail in Clause 23.1.13
(DIVIDEND PAYMENTS) if and to the extent that immediately
prior to such redrawing Term B1 Outstandings or Term C
Outstandings of an equal amount (as applicable) are repaid by
the Parent PROVIDED THAT:
(a) each Approved Additional Borrower shall only be
permitted to utilise the Term B1 Facility and the
Term C Facility once;
(b) each utilisation under this Clause 2.6.1 shall be
made concurrently and on a PRO RATA basis under the
Term B1 Facility and the Term C Facility; and
(c) the Parent has delivered evidence satisfactory to the
Facility Agent that no Event of Default under Clauses
24.6 (INSOLVENCY AND RESCHEDULING) to 24.9 (FAILURE
TO COMPLY) relating to the Approved Additional
Borrower or the Borrower making the prepayment or
repayment has occurred or is likely to occur which
could result in the repayment or drawdown being
avoided or reduced under applicable law.
2.6.2 Amounts which are repaid or due to be repaid (other than in
accordance with Clause 2.6.1) may not be re-utilised by means
of a Push-Down Advance made pursuant to Clause 2.6.1.
2.7 REFINANCING
[Intentionally left blank].
3. UTILISATION OF THE TERM FACILITIES
3.1 UTILISATION CONDITIONS FOR PUSH-DOWN ADVANCES
Subject to Clause 2.6 (DEBT PUSH-DOWN), a Push-Down Advance will be
made by the Term Banks under the relevant Facility to an Approved
Additional Borrower if:
3.1.1 not more than ten nor less than four Business Days before the
proposed Utilisation Date, the Facility Agent has received not
later than noon a completed Notice of Drawdown from such
Borrower stating that the utilisation is to be made by way of
Term Advance;
3.1.2 the proposed Utilisation Date is a Business Day which is the
last day of any Interest Period relating to a Term Advance
made under the Term B1 Facility (in the case of a Push-Down
Advance requested under the Term B1 Facility) or the Term C
Facility (in the case of a Push-Down Advance requested under
the Term C Facility) and is on or prior to the date falling 83
months after the date of this Agreement;
3.1.3 in respect of a Term Advance, the proposed amount or in
respect of a Term A2 Advance, the proposed Original Euro
Amount of such Term Advance is:
(a) in the case of a Term B1 Advance, an amount not less
than EUR 10,000,000 PROVIDED THAT:
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(i) the amount of such Push-Down Advance under
the Term B1 Facility shall not exceed the
amount of the Term B Advances (whose
Interest Periods end on the proposed
Utilisation Date) being repaid or prepaid
immediately prior to the making of such
Push-Down Advance;
(ii) no Exchange Borrower may draw down a
Push-Down Advance in an amount which would
result in the aggregate amount of Push-Down
Advances outstanding from such Exchange
Borrower being greater than the amount set
out opposite such Exchange Borrower's name
in the table below:
EXCHANGE BORROWER AMOUNT (MILLION EUR)
Sanitec Oy 170
Allia International S.A.S. 120
Allia S.A.S. 60
Sanitec Kolo Sp. z o.o. 45
and
(iii) without prejudice to that Borrower's
obligations under Clauses 11 (REPAYMENT OF
THE TERM FACILITIES), 12 (REPAYMENT OF THE
REVOLVING FACILITY), 14 (MANDATORY
PREPAYMENT) and 15 (CANCELLATION AND
VOLUNTARY PREPAYMENT) Allia S.A.S. shall at
all times whilst there are amounts
outstanding under the Term A2 Facility
ensure that its share of the Term A2
Outstandings is not less than EUR 15,000,000
other than where a lesser amount of
aggregate outstandings results from a
repayment (other than the repayment of a
Push-Down Advance in accordance with Clause
2.6 (DEBT PUSH-DOWN)) or prepayment made in
accordance with the terms of this Agreement;
and
(b) in the case of a Term C Advance, an amount not less
than EUR 10,000,000 PROVIDED THAT the amount of such
Push-Down Advance under the Term C Facility shall not
exceed the amount of the Term C Advances (whose
Interest Periods end on the proposed Utilisation
Date) being repaid or prepaid immediately prior to
the making of such Push-Down Advance;
3.1.4 on and as of the proposed date of the making of such Push-Down
Advance: (a) no Event of Default has occurred or would occur
as a result of the making of such Push-Down Advance and (b)
the Repeated Representations are true (before and after the
making of such Term Advance) or each of the Term Banks under
such Facility agrees (notwithstanding any matter mentioned in
this sub-clause 3.1.4) to participate in the making of such
Term Advance; and
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3.1.5 there would not, immediately after the making of such Term
Advance, be more than fifteen Term Advances and Bank
Guarantees outstanding in aggregate.
3.2 EACH TERM BANK'S PARTICIPATION IN TERM ADVANCES
Each Term Bank will participate through its Facility Office in each
Term Advance made pursuant to Clause 3.1 (DRAWDOWN CONDITIONS FOR
PUSH-DOWN ADVANCES) in the proportion borne by its relevant Available
Term Commitment to the relevant Available Term Facility immediately
prior to the making of that Term Advance.
3.3 RESTRICTIONS ON PARTICIPATION IN BANK GUARANTEE
[Intentionally left blank]
3.4 REDUCTION OF AVAILABLE TERM COMMITMENT
If a Term Bank's relevant Available Term Commitment is reduced in
accordance with the terms hereof after the Facility Agent has received
the Notice of Drawdown for a Term Advance and such reduction was not
taken into account in the relevant Available Term Facility, then the
amount (and, in the case of a Term A2 Advance, the Euro Amount) of that
Term Advance shall be reduced accordingly.
3.5 COMPLETION OF BANK GUARANTEES
[Intentionally left blank]
3.6 MULTICURRENCY OPTION
3.6.1 BORROWERS' REQUEST FOR OPTIONAL CURRENCY: Each Borrower may,
not less than five Business Days' before the first day of an
Interest Period, request (by notice to the Facility Agent)
that any Term A2 Advance be denominated in any Optional
Currency during such Interest Period, in which event such Term
A2 Advance shall, subject to Clause 3.6.2 (CONDITIONS FOR
DENOMINATION IN AN OPTIONAL CURRENCY), be denominated in such
Optional Currency. If the relevant Borrower does not make such
a request, each Term A2 Advance shall be denominated in the
currency in which it was denominated during the preceding
Interest Period;
3.6.2 CONDITIONS FOR DENOMINATION IN AN OPTIONAL CURRENCY: If a Term
A2 Advance is to be denominated in an Optional Currency during
any Interest Period relating thereto, but:
(a) no later than 11.00 am on the Quotation Date for such
Interest Period, the Facility Agent notifies the Parent
and the Banks that the Facility Agent is of the opinion
that such Optional Currency is not available;
(b) to give effect to such request would cause the Term A2
Outstandings to be denominated in more than (if counted
together) five Optional Currencies; or
(c) the use of the Optional Currency would be likely to
contravene any law or regulation,
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the Facility Agent shall notify the Parent and the Banks and
such Term A2 Advance, as the case may be, shall be denominated
in euro.
3.6.3 AMOUNTS OF TERM A2 ADVANCES: The amount of a Term A2 Advance
during an Interest Period relating thereto (in determining
which it shall be assumed that any part of such Term A2
Advance, falling to be repaid on or before the last day of the
preceding Interest Period, if any, relating thereto is duly
repaid) shall be:
(a) the Euro Amount of such Term A2 Advance if such Term A2
Advance is to be denominated in euro during such
Interest Period; or
(b) if such Term A2 Advance is to be denominated in an
Optional Currency, the amount of such Optional Currency
which could be purchased with the Euro Amount at the
spot rate of exchange quoted by the Facility Agent at or
about 11.00am on the second Business Day preceding the
first day of such Interest Period for the purchase of
such Optional Currency with euro,
PROVIDED THAT if a Term A2 Advance is to be denominated in the
same Optional Currency during two successive Interest Periods
and the amount of such Term A2 Advance, calculated in
accordance with sub-clause 3.6.3(b), is no more than 5 per
cent. higher or lower than its Existing Amount, its New Amount
shall be its Existing Amount;
3.6.4 CURRENCY CHANGE: If a Term A2 Advance is to be denominated in
different currencies during two successive Interest Periods,
then, on the last day of the first of those Interest Periods:
(a) each Bank shall pay an amount equal to its portion of
the New Amount of such Term Advance to the Facility
Agent, who shall hold the same on behalf of such Bank;
(b) the Facility Agent shall:
(i) apply the amount so made available to it by
each Bank in or towards the purchase of such
Bank's portion of the Existing Amount of
such Term A2 Advance and pay the amount so
purchased to such Bank; and
(ii) pay any portion of the amount made available
to it by the Banks and not applied in
accordance with sub-clause (i) above to the
Borrower or, if an Event of Default shall
have occurred and an Instructing Group so
determines, to the Banks, any amount so paid
to the Banks being treated as if it were a
prepayment made by the Borrower under Clause
15.2 (PREPAYMENT OF THE TERM OUTSTANDINGS);
and
(c) the Borrower shall pay to the Facility Agent for the
account of each Bank a sum equal to the amount (if any)
by which such Bank's share of the Existing Amount of
such Term A2 Advance exceeds the portion thereof
purchased by the Facility Agent pursuant to sub-clause
3.6.4(b)(i);
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3.6.5 SAME CURRENCY: If a Term A2 Advance is to be denominated in
the same Optional Currency during two successive Interest
Periods and there is any difference between the Existing
Amount of such Term A2 Advance and its New Amount, then, on
the last day of the first of those Interest Periods:
(a) if the Existing Amount of such Term A2 Advance exceeds
its New Amount, the Borrower shall pay to the Facility
Agent for the account of the Banks an amount equal to
the amount of such excess; or
(b) subject to final paragraph of Clause 3.6.3 if the New
Amount of such Term A2 Advance exceeds its Existing
Amount:
(i) each Bank shall pay to the Facility Agent
for the account of the Borrower an amount
equal to its portion of the amount of such
excess; or
(ii) if an Event of Default shall have occurred
and an Instructing Group so determines, no
such payments shall be made and a sum equal
to the aggregate amount which would have
been so payable shall be treated as having
been prepaid by the Borrower under Clause
15.2 (PREPAYMENT OF THE TERM OUTSTANDINGS).
4. INTEREST PERIODS FOR TERM ADVANCES
4.1 INTEREST PERIODS
The period for which a Term Advance is outstanding shall be divided
into successive periods each of which (other than the first, which
shall begin on the day such Term Advance is made) shall start on the
last day of the preceding such period.
4.2 DURATION
The duration of each Interest Period shall, save as otherwise provided
herein, be one, three or six months or such other period as the Term
Banks agree, in each case as the relevant Borrower may by not less than
4 Business Days' prior notice to the Facility Agent by 12.00 noon on
the relevant Business Day select, PROVIDED THAT:
4.2.1 if such Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period shall, subject to sub-clauses 4.2.2, 4.2.3 and 4.2.4
below, be one month;
4.2.2 any Interest Period which begins during or at the same time as
any other Interest Period and relates to Term Advances
denominated in the same currency and made under the same Term
Facility shall end at the same time as that other Interest
Period;
4.2.3 to the extent necessary to ensure at any time Advances (in an
aggregate amount not less than the amount of the next
scheduled repayment of principal hereunder) have Interest
Periods expiring on the relevant scheduled repayment date, any
Interest Period which would otherwise end during the month
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preceding, or extend beyond, a Term Repayment Date shall be of
such duration that it shall end on that Term Repayment Date;
and
4.2.4 prior to the Syndication Date Interest Periods shall be one
month (or, if less, such duration necessary to end on the
Syndication Date) or such other period as the Arranger, the
Facility Agent and the relevant Borrower may agree.
4.3 CONSOLIDATION OF TERM ADVANCES
Save as set out in Clause 2.1.2, if two or more Interest Periods
relating to Term Advances denominated in the same currency under the
same Term Facility and made to the same Borrower end at the same time,
then, on the last day of those Interest Periods, the Term Advances to
which they relate shall be consolidated into and treated as a single
Term Advance under such Term Facility.
4.4 EFFECTIVE GLOBAL RATE (TAUX EFFECTIF GLOBAL)
For the purposes of articles L. 313-1 et SEQ, R. 313-1 and R. 313-2 of
the French CODE DE LA CONSOMMATION, the parties to this Agreement
acknowledge that by virtue of certain terms of this Agreement (and in
particular the variable interest rate applicable to Advances and the
Borrowers' right to select the currency and the duration of the
Interest Period of each Advance) the TAUX EFFECTIF GLOBAL applicable to
the Facilities cannot be calculated at the date of this Agreement.
However, each Borrower incorporated in France acknowledges that it has
received from the Facility Agent a letter substantially in the form of
Schedule 14 (FORM OF LETTER FOR DETERMINATION OF THE EFFECTIVE GLOBAL
RATE (TAUX EFFECTIF GLOBAL)) hereto containing an indicative
calculation of the TAUX EFFECTIF GLOBAL, based on figured examples
calculated on assumptions as to the TAUX DE PERIODE and DUREE DE
PERIODE set out in the letter. The parties to this Agreement
acknowledge that that letter is incorporated into this Agreement as if
set out in full herein.
4.5 PUSH-DOWN ADVANCES
Notwithstanding any other provisions in this Agreement, no Push-Down
Advance shall be consolidated with any other Advance.
5. PAYMENT AND CALCULATION OF INTEREST ON TERM ADVANCES
5.1 PAYMENT OF INTEREST
On the last day of each Interest Period relating to a Term Advance
(and, if the Interest Period of such Term Advance exceeds six months,
on the expiry of each period of six months during that Interest Period)
the relevant Borrower shall pay accrued interest on the Term Advance to
which such Interest Period relates.
5.2 CALCULATION OF INTEREST
The rate of interest applicable to a Term Advance from time to time
during an Interest Period relating thereto shall be the rate per annum
which is the sum of the Margin at such time, the Mandatory Costs Rate
(if any) and the Interbank Rate on the Quotation Date therefor.
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5.3 MARGIN RATCHET
5.3.1 Subject to sub-clause 5.3.3 below, if the Total Debt Leverage
Ratio as defined in Schedule 5 (FINANCIAL CONDITION) in
respect of the most recent Relevant Period ending on or after
the date falling 12 months after the date hereof is within the
range set out in column 1 of the margin grid table set out
below, then the Applicable A1 Margin, the Applicable A2 Margin
and the Applicable Revolving Margin shall be the percentage
per annum set out opposite such range in column 2, 3 and 4.
MARGIN GRID TABLE
COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4
TOTAL DEBT LEVERAGE RATIO APPLICABLE A1 APPLICABLE A2 APPLICABLE
MARGIN MARGIN REVOLVING MARGIN
% % %
Greater than or equal to 2.25 2.25 2.25
3.5
Greater than or equal to 2.0 2.0 2.0
3.0 but less than 3.5
Greater than or equal to 1.75 1.75 1.75
2.5 but less than 3.0
Less than 2.5 1.5 1.5 1.5
5.3.2 Any revised margin provided for in sub-clause 5.3.1 shall take
effect only in relation to any Advance made or Interest Period
commencing at least fifteen Business Days after receipt by the
Facility Agent of the quarterly statements of the Group in
accordance with Clause 21.2 (QUARTERLY STATEMENTS) and a
Compliance Certificate for such Financial Quarter of the
Parent pursuant to Clause 21.5 (COMPLIANCE Certificates)
provided that if the annual audited financial statements of
the Group delivered in accordance with Clause 21.1 (ANNUAL
STATEMENTS) together with the Compliance Certificate for such
financial year of the Parent delivered in accordance with
Clause 21.5 (COMPLIANCE CERTIFICATES) show that the Margin
which has been set based on the quarterly statements for the
annual period ending on such financial year's end of the
Parent has been set incorrectly, then the Margin shall be
adjusted to reflect the Total Debt Leverage Ratio as defined
in Schedule 5 (FINANCIAL Condition) as evidenced by such
annual audited financial statements of the Group and the
thereto relating Compliance Certificate. Any such adjustment
of the Margin in respect of such annual period shall take
effect as of the date on which the original setting of the
Margin became effective. The financial condition and the
amount of Excess Cash Flow, as the case may be, set out in and
certified by any Compliance Certificate shall in the absence
of manifest error be conclusive.
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5.3.3 Any revised margin provided for in sub-clause 5.3.1 will cease
and shall be suspended (but will be reinstated upon the remedy
or waiver of the relevant event in accordance with the
following provisions) with effect from the date the accounts
in respect of a Financial Quarter or the financial year end of
the Parent are due to be delivered under Clause 21 (FINANCIAL
INFORMATION) if not delivered by then and upon the occurrence
or existence of an Event of Default for so long as the Event
of Default is continuing without having been remedied or
waived specifically for the purposes of this Clause 5.3 and
the Applicable A1 Margin, the Applicable A2 Margin and the
Applicable Revolving Margin for such time shall be 2.25 per
cent. per annum.
5.3.4 The Margin applicable upon the occurrence or existence of any
event referred to in sub-clause 5.3.3 shall apply from the
date the Facility Agent certifies in writing such event has
occurred or come into existence until the date the Facility
Agent certifies in writing such event has been remedied or
waived in accordance with this clause. The Facility Agent
shall give such certification promptly on the determination
that such event has occurred or exists and promptly upon
becoming aware of any remedy or waiver thereof.
5.4 BANK GUARANTEE COMMISSION
The relevant Borrower shall, in respect of each Bank Guarantee issued
under a Term Facility, pay to the Facility Agent for the account of
each Bank (for distribution in proportion to each Bank's Bank Guarantee
Proportion of such Bank Guarantee) a bank guarantee commission in the
currency in which the relevant Bank Guarantee is denominated at the
Bank Guarantee Commission Rate on the maximum actual and contingent
liabilities of the Fronting Bank under the relevant Bank Guarantee.
Such bank guarantee commission shall be paid in advance in respect of
each successive period of three months (or such shorter period as shall
end on the relevant Expiry Date) which begins during the Term of the
relevant Bank Guarantee, the first such payment to be made on the
Utilisation Date for such Bank Guarantee and thereafter on the first
day of each such period.
6. UTILISATION OF THE REVOLVING FACILITY
6.1 UTILISATION CONDITIONS FOR THE REVOLVING FACILITY A Revolving Advance
will be made by the Revolving Banks to a Revolving Borrower or a Bank
Guarantee will be issued by the Fronting Bank at a Revolving Borrower's
request if:
6.1.1 not more than ten nor less than four Business Days before the
Utilisation Date, the Facility Agent has received no later
than noon a completed Notice of Drawdown from such Revolving
Borrower stating whether the utilisation is to be made by way
of Revolving Advance or Bank Guarantee;
6.1.2 the proposed Utilisation Date is a Business Day falling one
month or more before the Revolving Termination Date;
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6.1.3 in the case of a Revolving Advance, the proposed date for such
utilisation is not less than fifteen Business Days after the
date upon which the previous Revolving Advance (if any) was
previously utilised;
6.1.4 in respect of a Revolving Advance, the proposed Original Euro
Amount of such Revolving Advance is (a) (if less than the
Available Revolving Facility) an amount not less than EUR
2,000,000 and an integral multiple of EUR 1,000,000 or (b)
equal to the amount of the Available Revolving Facility;
6.1.5 in respect of a Bank Guarantee, the proposed Euro Amount of
such Bank Guarantee is (a) (if less than the Available
Revolving Facility) an amount not less than EUR 10,000,000 and
an integral multiple of EUR 1,000,000 or (b) equal to the
amount of the Available Revolving Facility;
6.1.6 in respect of a Revolving Advance, the proposed Term of the
Revolving Advance requested is a period of one, three or six
months or such other period as the Facility Agent and the
Revolving Banks may agree PROVIDED THAT prior to the
Syndication Date the proposed Term shall be one month or, if
less, such duration necessary to end on the Syndication Date
or such other period as the Arranger, the Facility Agent and
the Parent may agree and in each case ending on or before the
Revolving Termination Date;
6.1.7 in respect of a Bank Guarantee, the proposed Term of such Bank
Guarantee is a period ending on or before the Revolving
Termination Date;
6.1.8 on and as of the Utilisation Date, (a) no Event of Default or
(save in relation to a Rollover Advance or Bank Guarantee to
be renewed pursuant to Clause 6.4 (RENEWAL OF A BANK
GUARANTEE)) Potential Event of Default is continuing or would
occur as a result of the making of such Revolving Advance or
issue of such Bank Guarantee and (b) the Repeated
Representations are true (before and after the making of such
Revolving Advance or issue of such Bank Guarantee) (PROVIDED
THAT in relation to a Rollover Advance the occurrence of a
Potential Event of Default which has not been remedied or
waived shall not prevent the utilisation of the Revolving
Facility) or each of the Revolving Banks agrees
(notwithstanding any matter mentioned in this sub-clause
6.1.8) to participate in the making of such Revolving Advance;
6.1.9 (in respect of a Bank Guarantee) the Fronting Bank and the
Facility Agent has each approved the terms of such Bank
Guarantee, the purpose of its issue and the identity of the
beneficiary;
6.1.10 there would not, immediately after the making of such
Revolving Advance or the issue of such Bank Guarantee, be more
than twelve Revolving Advances and Bank Guarantees outstanding
in aggregate,
PROVIDED THAT no Revolving Advance shall be made to Sanitec Kolo Sp. z
o.o. or Bank Guarantee under the Revolving Facility issued at the
request of Sanitec Kolo Sp. z o.o. if, as a result of the making of
such Revolving Advance or the issue of such Bank
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Guarantee, the Revolving Outstandings of Sanitec Kolo Sp. z o.o. would
exceed at any time EUR 10,000,000.
6.2 CONDITIONS FOR DRAWING A REVOLVING ADVANCE IN AN OPTIONAL CURRENCY
If a Revolving Borrower requests that a Revolving Advance be
denominated in an Optional Currency (but no later than 11.00am on the
Quotation Date for such Revolving Advance) and the Facility Agent
notifies such Revolving Borrower and the Revolving Banks:
6.2.1 that the Facility Agent is of the opinion that it is not
feasible for such Revolving Advance to be denominated in such
Optional Currency; or
6.2.2 to give effect to such request would cause the Revolving
Outstandings to be denominated in more than five Optional
Currencies,
then the Facility Agent shall notify such Revolving Borrower and the
Revolving Banks and such Revolving Advance shall be denominated in euro
in an amount equal to the Original Euro Amount.
6.3 COMPLETION OF BANK GUARANTEES
The Fronting Bank is authorised to issue any Bank Guarantee pursuant to
Clause 6 (UTILISATION CONDITIONS FOR THE REVOLVING FACILITY) by:
6.3.1 completing the issue date and the proposed Expiry Date of such
Bank Guarantee; and
6.3.2 executing and delivering such Bank Guarantee to the relevant
recipient on the Utilisation Date.
6.4 RENEWAL OF A BANK GUARANTEE
6.4.1 Not less than five Business Days before the Expiry Date of a
Bank Guarantee the Revolving Borrower which requested such
Bank Guarantee may, by written notice to the Facility Agent
substantially in the form of a Notice of Drawdown, request
that the Term of such Bank Guarantee be extended.
6.4.2 The Finance Parties shall treat such request in the same way
as a Notice of Drawdown for a Bank Guarantee save that the
condition set out in sub-clause 6.1.1 of Clause 6.1
(UTILISATION CONDITIONS FOR THE REVOLVING FACILITY) shall not
apply.
6.4.3 The terms of each renewed Bank Guarantee shall be the same as
those of the relevant Bank Guarantee immediately prior to its
renewal, save that its Term shall commence on the date which
was the Expiry Date of such Bank Guarantee immediately prior
to its renewal and shall end on the proposed Expiry Date
specified in such request.
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6.4.4 The Fronting Bank is authorised to (a) amend any such Bank
Guarantee or (b) issue a new Bank Guarantee pursuant to such
request in each case if the conditions set out in this
Agreement have been complied with.
6.5 EACH REVOLVING BANK'S PARTICIPATION IN REVOLVING ADVANCES
Each Revolving Bank will participate through its Facility Office in
each Revolving Advance made pursuant to this Clause 6 (UTILISATION OF
THE REVOLVING FACILITY) in the proportion borne by its Available
Revolving Commitment to the Available Revolving Facility immediately
prior to the making of that Revolving Advance.
6.6 REDUCTION OF AVAILABLE REVOLVING COMMITMENT
If a Revolving Bank's Revolving Commitment is reduced in accordance
with the terms hereof after the Facility Agent has received the Notice
of Drawdown for a Revolving Advance and such reduction was not taken
into account in the Available Revolving Facility, then both the
Original Euro Amount and the amount of that Revolving Advance shall be
reduced accordingly.
6.7 RESTRICTIONS ON PARTICIPATION IN BANK GUARANTEE
If at any time prior to the issue of a Bank Guarantee any Bank 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 such Bank
Guarantee, such Bank shall notify the Facility Agent on or before the
Business Day prior to the proposed drawdown date and:
6.7.1 the maximum actual and contingent liabilities of the relevant
Fronting Bank under such Bank Guarantee shall be reduced by an
amount equal to what would have been the amount of such Bank's
Guarantee Proportion of such Bank Guarantee if such
prohibition had not occurred;
6.7.2 the Guarantee Proportion of such Bank in relation to such Bank
Guarantee shall be nil; and
6.7.3 such Bank's Available Revolving Commitment shall be reduced by
an amount equal to what would have been the amount of such
Bank's Guarantee Proportion of such Bank Guarantee if such
prohibition had not occurred.
7. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES
7.1 PAYMENT OF INTEREST
On the Repayment Date relating to each Revolving Advance (and, if the
Term of such Revolving Advance exceeds six months, on the expiry of
each period of six months during such Term) the Revolving Borrower to
which such Revolving Advance has been made shall pay accrued interest
on that Revolving Advance.
7.2 CALCULATION OF INTEREST
The rate of interest applicable to a Revolving Advance from time to
time during its Term shall be the rate per annum which is the sum of
the Margin at such time, the Mandatory Costs Rate (if any) and the
Interbank Rate on the Quotation Date therefor.
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7.3 BANK GUARANTEE COMMISSION
The relevant Revolving Borrower shall, in respect of each Bank
Guarantee issued under the Revolving Facility, pay to the Facility
Agent for the account of each Bank (for distribution in proportion to
each Bank's Bank Guarantee Proportion of such Bank Guarantee) a bank
guarantee commission in the currency in which the relevant Bank
Guarantee is denominated at the Bank Guarantee Commission Rate on the
maximum actual and contingent liabilities of the Fronting Bank under
the relevant Bank Guarantee. Such bank guarantee commission shall be
paid in advance in respect of each successive period of three months
(or such shorter period as shall end on the relevant Expiry Date) which
begins during the Term of the relevant Bank Guarantee, the first such
payment to be made on the Utilisation Date for such Bank Guarantee and
thereafter on the first day of each such period.
7.4 EFFECTIVE GLOBAL RATE (TAUX EFFECTIF GLOBAL)
For the purposes of articles L. 313-1 et SEQ, R. 313-1 and R. 313-2 of
the French CODE DE LA CONSOMMATION, the parties to this Agreement
acknowledge that by virtue of certain terms of this Agreement (and in
particular the variable interest rate applicable to Advances and the
Borrowers' right to select the currency and the duration of the
Interest Period of each Advance) the TAUX EFFECTIF GLOBAL applicable
to the Facilities cannot be calculated at the date of this Agreement.
However, each of Borrower incorporated in France acknowledges that it
has received from the Facility Agent a letter substantially in the
form of Schedule 14 (FORM OF LETTER FOR DETERMINATION OF THE EFFECTIVE
GLOBAL RATE (TAUX EFFECTIF GLOBAL)) hereto containing an indicative
calculation of the TAUX EFFECTIF GLOBAL, based on figured examples
calculated on assumptions as to the TAUX DE PERIODE and DUREE DE
PERIODE set out in the letter. The parties to this Agreement
acknowledge that that letter is incorporated into this Agreement as if
set out in full herein.
8. ANCILLARY FACILITIES
8.1 AVAILABLE ANCILLARY FACILITIES
Ancillary Facilities may comprise:
8.1.1 overdraft facilities;
8.1.2 guarantee, bonding, documentary or stand-by letter of credit
facilities;
8.1.3 short term loans;
8.1.4 foreign exchange facilities; or
8.1.5 other facilities or accommodation as may be required in
connection with the business of the Group and which are agreed
with the relevant Ancillary Bank.
8.2 REQUEST FOR ANCILLARY FACILITY
A Revolving Borrower may, at any time from the date hereof to the
Revolving Termination Date, by notice in writing to the Facility Agent
request the establishment of an Ancillary Facility by the conversion of
a Revolving Bank's Available Revolving Commitment into an Ancillary
Commitment with effect from the date (the "EFFECTIVE
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DATE") (or such later date as such Revolving Borrower and the Facility
Agent may agree from time to time) specified in such notice being a
date not less than ten Business Days after the date such notice is
received by the Facility Agent. Any such notice shall specify:
8.2.1 the proposed Revolving Borrower;
8.2.2 the proposed commencement and expiry date for the Ancillary
Facility concerned (and the expiry date must be a Business Day
on or prior to the Revolving Termination Date);
8.2.3 the type of the proposed Ancillary Facility;
8.2.4 the proposed Ancillary Bank;
8.2.5 the Ancillary Commitment to apply to the proposed Ancillary
Facility; and
8.2.6 such other details as to the nature, amount and operation of
the proposed Ancillary Facility as the Facility Agent may
reasonably require;
and shall contain a confirmation by the relevant Ancillary Bank of the
details therein specified and the Facility Agent shall promptly notify
each Revolving Bank upon receipt of any such notice PROVIDED THAT no
Revolving Bank shall be obliged to make available an Ancillary Facility
under this Clause 8 (ANCILLARY FACILITIES).
8.3 THE ANCILLARY BANK
Any Revolving Bank so nominated in accordance with Clause 8.2 (REQUEST
FOR ANCILLARY Facility) may become an Ancillary Bank authorised to make
the proposed Ancillary Facility available with effect on and from the
Effective Date (provided that it has sufficient Available Revolving
Commitment) and the Facility Agent shall notify the Parent, such
Ancillary Bank and the Revolving Banks thereof PROVIDED that there
shall at no time be more than four Ancillary Banks.
8.4 TERMS OF ANCILLARY FACILITY
Subject to Clauses 8.2 (REQUEST FOR ANCILLARY FACILITY) and 8.3 (THE
ANCILLARY BANK) above, the terms governing any Ancillary Facility shall
be those determined by agreement between the Ancillary Bank and the
Revolving Borrower concerned, provided that such terms are based upon
normal commercial terms, save as may be varied by this Agreement.
8.5 VARIATIONS
Any material variation in any Ancillary Facility or any proposed
increase or reduction in the Ancillary Commitment relating thereto
shall be effected on and subject to the provisions, MUTATIS MUTANDIS,
of this Clause 8 (ANCILLARY FACILITIES).
8.6 ACCELERATION
Save to the extent any Ancillary Commitment is being converted into an
Available Revolving Commitment pursuant to Clauses 8.11 (REDUCTION AND
INCREASE OF AVAILABLE REVOLVING Commitment) or 8.12 (CANCELLATION OF
ANCILLARY FACILITY), no Ancillary Bank
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may, until notice has been served under Clause 24.22 (ACCELERATION AND
CANCELLATION), demand repayment of any moneys made available by it or
withdraw prior to its original maturity any Ancillary Facility or the
right to make utilisations thereunder, or demand cash cover in respect
of any guarantees or similar contingent liabilities made available by
it, under its Ancillary Facility or take any action analogous to any of
the foregoing under any other type of banking arrangements provided by
it under its Ancillary Facility.
8.7 TERMINATION
The Ancillary Commitment of each Ancillary Bank shall terminate no
later than the Revolving Termination Date.
8.8 PREVAILING AGREEMENT
In the case of inconsistency between any term of an Ancillary Facility
and of this Agreement, the terms of this Agreement shall prevail.
8.9 ANCILLARY OUTSTANDINGS
Each Revolving Borrower and each Ancillary Bank agree with and for the
benefit of each Ancillary Bank that the Ancillary Outstandings under
any Ancillary Facility provided by that Ancillary Bank shall not exceed
the Ancillary Commitment applicable to that Ancillary Facility.
8.10 NOTIFICATION
Each Revolving Borrower and each Ancillary Bank shall, promptly upon
request by the Facility Agent, supply the Facility Agent with such
information relating to the operation of each Ancillary Facility
provided by such Ancillary Bank (including, without limitation, the
Ancillary Outstandings thereunder) as the Facility Agent may from time
to time request. Each Revolving Borrower consents to all such
information being released to the Facility Agent and each Revolving
Bank.
8.11 REDUCTION AND INCREASE OF AVAILABLE REVOLVING COMMITMENT
The Available Revolving Commitment of each Ancillary Bank shall be
reduced PRO TANTO by the amount of its Ancillary Commitment but shall
automatically increase upon that Ancillary Facility ceasing to be
available to the relevant Revolving Borrower or upon the Ancillary
Facility being cancelled in accordance with Clause 8.12 (CANCELLATION
OF ANCILLARY FACILITY).
8.12 CANCELLATION OF ANCILLARY FACILITY
Any Revolving Borrower which has established an Ancillary Facility may
at any time by notice in writing to the Facility Agent and the relevant
Ancillary Bank cancel such Ancillary Facility, in which event on the
date specified in the notice, being a date not less than ten Business
Days after the date such notice is received by the Facility Agent, the
Ancillary Commitment of the relevant Ancillary Bank shall be converted
into an Available Revolving Commitment.
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9. MARKET DISRUPTION
If, in relation to an Advance or Unpaid Sum:
9.1 the Interbank Rate is to be determined by reference to Reference Banks
and at or about 11.00am on the Quotation Date for the relevant Interest
Period or Term none or, after the Syndication Date, none or only one of
the Reference Banks supplies a rate for the purpose of determining the
Interbank Rate for the relevant Interest Period or Term; or
9.2 before the close of business in Frankfurt on the Quotation Date for
such Advance or Unpaid Sum, the Facility Agent has been notified by a
Bank or each of a group of Banks in each case to whom in aggregate
twenty per cent. or more of such Advance or Unpaid Sum is (or, if an
Advance were then made, would be) owed that the Interbank Rate does
not, by reason of circumstances affecting the inter-bank market
generally, accurately reflect the cost to it of obtaining matching
deposits for its participation in such Advance or Unpaid Sum,
then, notwithstanding anything contrary in this Agreement:
9.2.1 the Facility Agent shall promptly notify the Parent, the
relevant Borrower and the Banks of such event and, if such
Advance is a Revolving Advance, it shall not be made; and
9.2.2 if the Facility Agent or the Parent so requires, the Facility
Agent and the Parent 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 and any
such substitute basis that is agreed shall take effect in
accordance with its terms and be binding on each party hereto;
and
9.2.3 the rate of interest applicable to the Advance (if made) or
Unpaid Sum from time to time during an Interest Period or Term
shall be the rate per annum which is the sum of the Margin,
the Mandatory Costs Rate (if any) and the rate per annum
determined by the Facility Agent to be the weighted average
(rounded to four decimal places) of the rates notified by each
Bank to the Facility Agent before the last day of such
Interest Period or Term to be those which express as a
percentage rate per annum the cost to such Bank of funding
from whatever sources it may reasonably select its portion of
such Advance or Unpaid Sum during such Interest Period or
Term.
10. NOTIFICATION
10.1 ADVANCES AND BANK GUARANTEES
Not later than 10.00 am three Business Days before the first day of an
Interest Period or Term, the Facility Agent shall notify each Bank of
the Facility that is to be utilised, the name of the Borrower, the
proposed amount or Euro Amount of the relevant Advance, the proposed
length of the relevant Interest Period or Term, whether or not such
Advance is to be denominated in an Optional Currency (and, if so, the
amount of such Advance in the relevant Optional Currency) and the
aggregate principal amount of the relevant Advance allocated to such
Bank pursuant to Clause 3.2 (EACH TERM BANK'S
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PARTICIPATION IN TERM ADVANCES) or Clause 6.5 (EACH REVOLVING BANK'S
PARTICIPATION IN REVOLVING ADVANCES).
10.2 INTEREST RATE DETERMINATION
The Facility Agent shall promptly notify the relevant Borrower and the
Banks of each determination of the Interbank Rate, the Margin and the
Mandatory Costs Rate.
10.3 DEMANDS UNDER BANK GUARANTEES
If a demand is made under a Bank Guarantee or a Fronting Bank incurs in
connection with a Bank Guarantee any other liability, cost, claim, loss
or expense which is to be reimbursed pursuant to this Agreement, the
Fronting Bank shall promptly notify the Facility Agent of the amount of
such demand or such liability, cost, claim, loss or expense and the
Bank Guarantee to which it relates and the Facility Agent shall
promptly make demand upon the Borrower in accordance with this
Agreement and notify the Banks.
10.4 CHANGES TO ADVANCES OR INTEREST RATES
The Facility Agent shall promptly notify the relevant Borrower and the
Banks of any change to (a) the proposed currency of an Advance
occasioned by the operation of sub-clause 3.6.2 (CONDITIONS FOR
DENOMINATION IN AN OPTIONAL CURRENCY) or of Clause 6.2 (CONDITIONS FOR
DRAWING A REVOLVING ADVANCE IN AN OPTIONAL CURRENCY), (b) the proposed
length of an Interest Period or Term or (c) any interest rate
occasioned by the operation of Clause 9 (MARKET DISRUPTION).
11. REPAYMENT OF THE TERM FACILITIES
11.1 TERM REPAYMENT INSTALMENTS
The relevant Borrowers shall repay the Term A1 Outstandings, the Term
A2 Outstandings, the Term B1 Outstandings, the Term B2 Outstandings and
the Term C Outstandings in each case as at the final date of the
relevant Term Availability Period (the Term B1 Outstandings being
deemed for these purposes to be EUR 84,136,304 at the end of the Term
Availability Period relating to the Term B1 Facility and the Term B2
Outstandings being deemed for these purposes to be EUR 25,863,696 at
the end of the Term Availability Period relating to the Term B2
Facility) owed by them in instalments by repaying the amount
representing the percentage and on the Term Repayment Dates set out in
the table below:
TERM REPAYMENT DATE PERCENTAGE OF PERCENTAGE OF PERCENTAGE OF PERCENTAGE OF
TERM A1 TERM A2 TERM B1 TERM C
OUTSTANDINGS OUTSTANDINGS OUTSTANDINGS AND OUTSTANDINGS
TERM B2
OUTSTANDINGS
20 June 2002 [repaid in full] 2.81 0.5 0.5
20 December 2002 2.81 0.5 0.5
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20 June 2003 4.39 0.5 0.5
20 December 2003 4.39 0.5 0.5
20 June 2004 6.49 0.5 0.5
20 December 2004 6.49 0.5 0.5
20 June 2005 8.07 0.5 0.5
20 December 2005 8.07 0.5 0.5
20 June 2006 9.82 0.5 0.5
20 December 2006 9.82 0.5 0.5
20 June 2007 11.40 0.5 0.5
20 December 2007 11.40 0.5 0.5
26 April 2008 14.04 0.5 0.5
20 December 2008 - 46.75 0.5
26 April 2009 46.75 0.5
20 December 2009 - 46.25
26 April 2010 - 46.25
11.2 SELECTION OF TERM ADVANCES
If, in relation to a Term Repayment Date for any Term Facility, the
aggregate amount of the relevant Term Advances and Bank Guarantees
exceeds the amount of the relevant Term Outstandings to be repaid, the
relevant Borrower may, by not less than five Business Days' prior
notice to the Facility Agent, select which of those Term Advances or
Bank Guarantees will be wholly or partially repaid, PROVIDED THAT:
11.2.1 any repayment by a Borrower of an instalment of Term
Outstandings shall be applied PRO RATA across Push-Down
Advances to such Borrower under the relevant Term Facility and
Term Advances (other than Push-Down Advances) to such Borrower
under such Term Facility; and
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11.2.2 if the relevant Borrower fails to give such notice, the
Facility Agent shall select, subject to Clause 11.2.1, the
relevant Term Advances or Bank Guarantee to be wholly or
partially repaid.
12. REPAYMENT OF THE REVOLVING FACILITY
Each Revolving Borrower shall repay the Revolving Advance made to it in
full on the Repayment Date relating thereto.
13. BORROWERS' LIABILITIES IN RELATION TO A BANK GUARANTEE
13.1 BORROWERS' INDEMNITY TO FRONTING BANK
Each Borrower shall irrevocably and unconditionally as a primary
obligation indemnify (on demand of the Facility Agent) the Fronting
Bank against:
13.1.1 any sum paid or due and payable by the Fronting Bank under
such Bank Guarantee; and
13.1.2 all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from the
Fronting Bank under any Bank Guarantee or in connection with
any such Bank Guarantee), claims, losses and expenses which
the Fronting Bank may at any time incur or sustain in
connection with or arising out of any such Bank Guarantee.
13.2 BORROWERS' INDEMNITY TO BANKS
Each Borrower shall irrevocably and unconditionally as a primary
obligation indemnify (on demand of the Facility Agent) each Bank
against:
13.2.1 any sum paid or due and payable by such Bank (whether under
Clause 34.1 (BANKS' INDEMNITY) or otherwise) in connection
with such Bank Guarantee; and
13.2.2 all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from such
Bank in connection with such Bank Guarantee), claims, losses
and expenses which such Bank may at any time incur or sustain
in connection with any Bank Guarantee.
13.3 PRESERVATION OF RIGHTS
Neither the obligations of any Borrower set out in this Clause 13
(BORROWERS' LIABILITIES IN RELATION TO A BANK GUARANTEE) nor the
rights, powers and remedies conferred on the Fronting Bank or Bank by
this Agreement or by law shall be discharged, impaired or otherwise
affected by:
13.3.1 the winding-up, dissolution, administration or re-organisation
of the Fronting Bank, any Bank or any other person or any
change in its status, function, control or ownership;
13.3.2 any of the obligations of the Fronting Bank, any Bank or any
other person hereunder or under any Bank Guarantee or under
any other security taken in respect of its obligations
hereunder or otherwise in connection with a Bank
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Guarantee being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
13.3.3 time or other indulgence being granted or agreed to be granted
to the Fronting Bank, any Bank or any other person in respect
of its obligations hereunder or under or in connection with a
Bank Guarantee or under any such other security;
13.3.4 any amendment to, or any variation, waiver or release of, any
obligation of the Fronting Bank, any Bank or any other person
under a Bank Guarantee or this Agreement;
13.3.5 any other act, event or omission which, but for this Clause
13, might operate to discharge, impair or otherwise affect any
of the obligations of any Borrower set out in this Clause 13
or any of the rights, powers or remedies conferred upon the
Fronting Bank or any Bank by this Agreement or by law.
The obligations of each Borrower set out in this Clause 13 shall be in
addition to and independent of every other security which the Fronting
Bank or any Bank may at any time hold in respect of such Borrower's
obligations hereunder.
13.4 SETTLEMENT CONDITIONAL
Any settlement or discharge between any Borrower and the Fronting Bank
or a Bank shall be conditional upon no security or payment to the
Fronting Bank or Bank by such Borrower, or any other person on behalf
of such Borrower, being avoided or reduced by virtue of any laws
relating to bankruptcy, insolvency, liquidation or similar laws of
general application and, if any such security or payment is so avoided
or reduced, the Fronting Bank or Bank 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.
13.5 RIGHT TO MAKE PAYMENTS UNDER BANK GUARANTEES
The Fronting Bank shall be entitled to make any payment in accordance
with the terms of the relevant Bank Guarantee without any reference to
or further authority from the relevant Borrower or any other
investigation or enquiry. Each Borrower irrevocably authorises the
Fronting Bank to comply with any demand under a Bank Guarantee which is
valid on its face.
13.6 REVALUATION OF OUTSTANDINGS
On each Valuation Date, the Facility Agent shall calculate the amount
of the Revolving Outstandings (other than the Ancillary Outstandings)
(having regard to changes in the Euro Amounts of the Bank Guarantees
which may arise as a result of currency fluctuations) and the Facility
Agent shall notify the Borrowers of the amounts, if any (each an
"EXCESS AMOUNT") by which the Revolving Outstandings exceed the
aggregate Revolving Commitments (as reduced by the Ancillary
Commitments) of the Banks and the Borrower shall:
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13.6.1 procure that the Fronting Bank's obligations under any Bank
Guarantees issued under the Revolving Facility are reduced by
an amount in aggregate no less than the Excess Amount; or
13.6.2 secure such Excess Amount by providing Cash Collateral in an
amount no less than the Excess Amount.
14. MANDATORY PREPAYMENT
14.1 MANDATORY PREPAYMENT ON DISPOSAL
Subject to Clause 14.9 (PREPAYMENT ACCOUNT) and Clause 14.10
(UPSTREAMING OF FUNDS) and other than proceeds referred to in
sub-clauses (a) and (b) of the definition of Permitted Disposals, the
Parent (and in the case that a Borrower under the A2 Facility has
received proceeds, such Borrower) shall apply, or procure the
application of, an amount equal to the Net Disposal Proceeds in respect
of any disposal of any assets of the Group in prepayment of the
Facilities in accordance with Clause 14.8 (APPLICATION OF PREPAYMENTS)
promptly upon receipt of the same and, in any event, not more than two
Business Days after receipt of the same, SAVE FOR such Net Disposal
Proceeds which do not exceed EUR 5,000,000 (or its equivalent) in
aggregate at any time or which are applied or committed to be applied
in reinvestment in similar or like assets as soon as practicable but in
any event within a period of six months and if only committed to be
applied, actually so applied within a period of nine months, of receipt
of such proceeds when, if not so reinvested, such Net Disposal Proceeds
shall immediately be applied in prepayment of the Facilities in
accordance with this Clause 14.1.
The Parent shall pay or shall procure that there are paid any disposal
proceeds retained for reinvestment as permitted hereunder into the
Holding Account promptly upon receipt of the same.
14.2 MANDATORY PREPAYMENT ON SALE OR FLOTATION
Subject to Clause 14.9 (PREPAYMENT ACCOUNT) the Parent shall apply an
amount equal to the amount of funds raised:
14.2.1 by any Flotation; or
14.2.2 upon any disposal of all or part of the shares or interest in
the Target Company,
in prepayment of the Facilities in accordance with Clause 14.8
(APPLICATION OF PREPAYMENTS) promptly upon receipt of the same and, in
any event, not more than two Business Days after the same.
14.3 MANDATORY PREPAYMENT ON CHANGE OF CONTROL
The Borrowers shall prepay, or procure the immediate prepayment of, the
Outstandings in full together with interest thereon and any amounts
payable hereunder (i) upon a Flotation or Share Sale in each case of
the Parent, if such Flotation or Share Sale would result in the BC
Partners Funds ceasing to control in aggregate directly or indirectly
at least fifty-one per cent. of the voting rights in the Parent or (ii)
upon the sale of the whole or substantially the whole of the Group's
business or assets.
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14.4 MANDATORY PREPAYMENT OF EXCESS CASH
Subject to Clause 14.9 (PREPAYMENT ACCOUNT) and Clause 14.10
(UPSTREAMING OF FUNDS) the Parent shall apply or procure the
application of an amount equal to 75 per cent. of any Excess Cash Flow
which exceeds EUR 2,000,000 (or its equivalent), in respect of any
financial year in prepayment of the Facilities in accordance with
Clause 14.8 (APPLICATION OF PREPAYMENTS) within fifteen days after the
delivery of its annual audited consolidated financial statements of the
Group for such period pursuant to Clause 21.1 (ANNUAL Statements),
PROVIDED THAT this clause 14.4 shall not apply to the extent required
that following any such cash sweep a minimum amount of Cash (as defined
in Schedule 5 (FINANCIAL CONDITION)) of EUR 20,000,000 remains with the
Group and PROVIDED THAT this Clause 14.4 shall not apply if the ratio
of Total Net Debt to Consolidated Adjusted EBITDA calculated on a
Rolling Basis (as defined in Schedule 5 (FINANCIAL CONDITION)) has
remained below 2.5 for at least two consecutive Financial Quarters, the
later of which ending on or about the date to which the relevant annual
audited consolidated financial statements referred to above were drawn
up, and FURTHER PROVIDED THAT if, following the Junior Take-Out, the
first payment of semi annual interest payments under the securities
issued under the Junior Take-Out is payable in the first Financial
Quarter of the year following the year of the issuance of such
securities, then an amount equal to such initial semi annual interest
instalment shall be deducted from the Excess Cash Flow amount of the
year of the issuance.
14.5 MANDATORY PREPAYMENT OF INSURANCE PROCEEDS
Subject to Clause 14.9 (PREPAYMENT ACCOUNT) and Clause 14.10
(UPSTREAMING OF FUNDS), the Parent (and in the case that a Borrower
under the A2 Facility has received proceeds, such Borrower) shall
apply, or procure the application of, an amount equal to the proceeds
of any insurance claim received by any member of the Group (after
deducting any reasonable out-of-pocket expenses incurred by any member
of the Group in relation to such claim) in prepayment of the Facilities
in accordance with Clause 14.8 (APPLICATION OF PREPAYMENTS) promptly
upon receipt of the same and, in any event, not more than two Business
Days after receipt of the same, SAVE FOR any proceeds:
14.5.1 which do not exceed EUR 2,000,000 (or its equivalent) in
aggregate in any financial year;
14.5.2 which are applied to meet a third party claim;
14.5.3 which are applied or committed to be applied in replacement,
reinstatement and/or repair of the assets in respect of which
the relevant insurance claim was made as soon as reasonably
practicable and, in any event, within a period of six months
and if only committed to be applied, actually so applied
within a period of nine months, of receipt of such proceeds
when, if not so applied, such proceeds shall immediately be
applied in prepayment of the Facilities in accordance with
this Clause 14.5; or
14.5.4 which are in respect of loss of profits.
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The Parent shall pay, or shall procure that there are paid any
insurance proceeds retained for the purposes permitted under sub-clause
14.5.3 into the Holding Account promptly upon receipt of the same.
14.6 MANDATORY PREPAYMENT OF ACQUISITION RECOVERIES AND EXTRAORDINARY
RECEIPTS Subject to Clause 14.9 (PREPAYMENT ACCOUNT) and save as
otherwise agreed in writing by an Instructing Group, the Parent (and in
the case that a Borrower under the A2 Facility has received proceeds,
such Borrower) shall apply or procure the application of an amount
equal to (i) the proceeds of any claim for breach of contract or
warranty by, misrepresentation by, indemnity or other claim against the
Vendors in relation to the Acquisition Documents (a "RECOVERY CLAIM")
received by the Parent or (ii) subject to Clause 14.10 (UPSTREAMING OF
Funds) the proceeds of any other extraordinary receipt (but including,
for the avoidance of doubt, all amounts received under the PIK Take-Out
(such PIK Take-Out to occur in accordance with the Finance Documents))
(an "EXTRAORDINARY RECEIPT") save for any amounts received under the
Junior Take-Out to the extent applied to repay amounts outstanding
under the Junior Facility Agreement and/or the Junior On-Loan and
thereafter the Liquidity Facility Agreement received by any member of
the Group (in each case after deducting any reasonable out-of-pocket
expenses incurred by any member of the Group in relation to such
Recovery Claim or Extraordinary Receipt) in prepayment of the
Facilities in accordance with Clause 14.8 (APPLICATION OF PREPAYMENTS)
promptly on receipt of the same and, in any event, within two Business
Days after receipt of the same SAVE FOR any such proceeds which are:
14.6.1 in respect of a liability or a charge or claim upon a member
of the Group arising from such Recovery Claim or Extraordinary
Receipt and which will be properly applied in the discharge of
that liability, charge or claim; or
14.6.2 paid to a member of the Group by way of reimbursement of
monies disbursed by such member of the Group in connection
with discharging any liability, charge or claim referred to in
sub-clause 14.6.1 above; or
14.6.3 applied in replacement, reinstatement and/or repair of assets
of a member of the Group which have been lost, destroyed or
damaged as a result of the events or circumstances giving rise
to such Recovery Claim or Extraordinary Receipt; or
14.6.4 required to be paid to third parties,
PROVIDED THAT the proceeds referred to in sub-clauses 14.6.3 above are
properly applied for the purposes set out therein as soon as
practicable and, in any event, within a period of six months when, if
not so applied, such proceeds shall immediately be applied in
prepayment of the Facilities in accordance with this Clause 14.6.
The Parent shall pay any proceeds retained for the purposes permitted
under Clause 14.6.3 into the Holding Account promptly upon the receipt
of the same.
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14.7 MANDATORY PREPAYMENT OF EXCESS TERM ADVANCES
The Parent shall apply without undue delay any amount drawn down
hereunder other than under the Term A2 Facility and other than up to
EUR 6,200,000 under the Term B Facilities but not applied on or before
the date falling twelve months after the date hereof in payment for
Target Company Shares (i) under the Mandatory Offer or (ii) purchase of
Target Company Shares in the market other than pursuant to the Offers
or the Acquisition Agreement as referred to in Clause 2.2.1 in
prepayment of the Term Facilities in accordance with Clause 14.8
(APPLICATION OF PREPAYMENTS).
14.8 APPLICATION OF PREPAYMENTS
14.8.1 Any prepayment made under Clause 14.1 (MANDATORY PREPAYMENT ON
DISPOSAL) to 14.7 (MANDATORY PREPAYMENT OF EXCESS TERM
ADVANCES) other than from the proceeds of the PIK Take-Out
shall be applied in repayment of:
(a) FIRST, PRO RATA across the Term A1 Outstandings and
the Term A2 Outstandings;
(b) SECOND, PRO RATA across the Term B1 Outstandings and
the Term B2 Outstandings;
(c) THIRD, the Term C Outstandings; and
(d) FOURTH, to the extent the Term Outstandings have been
repaid in full, in prepayment of the Revolving
Outstandings applied against Revolving Advances (and
cash advances forming part of Ancillary Outstandings)
and/or Bank Guarantees (and contingent Liabilities
under any Ancillary Facility) at the option of the
relevant Borrower (and any amounts so prepaid may not
be re-borrowed and the Revolving Commitments and
Ancillary Commitments of the Banks will be
permanently reduced PRO RATA) PROVIDED THAT amounts
shall be applied PRO RATA between Revolving
Outstandings (other than Ancillary Outstandings) and
Ancillary Outstandings.
14.8.2 Any prepayment from the proceeds of the PIK Take-Out shall be
applied FIRST in repayment of the Term A1 Outstandings and
SECOND the Term A2 Outstandings such that the repayment
instalments shall, following application of such proceeds, be
as set out in Clause 11.1 (TERM REPAYMENT INSTALMENTS).
14.8.3 Any prepayment of Term Outstandings other than from the
proceeds of the PIK Take-Out shall satisfy the obligations
under Clause 11.1 (TERM REPAYMENT INSTALMENTS) IN INVERSE
CHRONOLOGICAL ORDER as between such term repayment
instalments.
14.8.4 Any prepayment of an instalment of Term Outstandings shall be
applied PRO RATA across the Term Advances constituting such
instalment of Term Outstandings (unless otherwise agreed by an
Instructing Group).
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14.9 PREPAYMENT ACCOUNT
14.9.1 If Clauses 14.1 (MANDATORY PREPAYMENT ON DISPOSAL), 14.2
(MANDATORY PREPAYMENT ON SALE OR FLOTATION), 14.4 (MANDATORY
PREPAYMENT OF EXCESS CASH), 14.5 (MANDATORY PREPAYMENT OF
INSURANCE PROCEEDS), 14.6 (MANDATORY PREPAYMENT OF ACQUISITION
RECOVERIES) and 14.7 (MANDATORY PREPAYMENT OF EXCESS TERM
ADVANCES) would require the Parent to prepay or procure the
prepayment of the Facilities granted hereunder (including all
of the amounts standing to the credit of the Holding Account)
otherwise than at the end of an Interest Period or Term, the
Parent may elect (by written notice to the Facility Agent to
be received not later than 10.00 am one day prior to the date
on which the prepayment obligation would, but for this Clause
14.9, arise) to credit the amount to be prepaid to the Holding
Account on the date on which the prepayment obligation would,
but for this Clause 14.9, arise and to prepay the relevant
Advance at the first occurring end of an Interest Period or
Term (as the case may be). Following any such election and
provided the required payment is made to the Holding Account
the obligation to prepay the relevant Advance will not arise
until the first occurring end of an Interest Period or Term
(as the case may be).
14.9.2 The Parent hereby authorises the Facility Agent to withdraw
monies from the Holding Account and apply such monies against
prepayments which are due to be made hereunder or, upon the
occurrence of an Event of Default which is continuing, against
any amounts due and payable under the Finance Documents.
14.10 UPSTREAMING OF FUNDS
Clauses 14.1 (MANDATORY PREPAYMENT ON DISPOSAL), 14.4 (MANDATORY
PREPAYMENT OF EXCESS CASH), 14.5 (MANDATORY PREPAYMENT OF INSURANCE
PROCEEDS) and 14.6 (MANDATORY PREPAYMENT OF ACQUISITION RECOVERIES AND
EXTRAORDINARY RECEIPTS) shall not apply if and to the extent that it is
legally neither permissible (i) to upstream the funds required to
effect the mandatory prepayment from the relevant recipient to the
Parent in any way whatsoever nor (ii) for the Parent to procure the
mandatory prepayment to be effected, unless such prepayment can be
effected by the recipient of such funds, being a Term A2 Borrower,
itself.
15. CANCELLATION AND VOLUNTARY PREPAYMENT
15.1 CANCELLATION OF THE TERM FACILITIES
The relevant Borrower may, by giving to the Facility Agent not less
than five Business Days' prior notice to that effect, cancel without
penalty the whole or any part (being an amount of not less than EUR
5,000,000 (or its equivalent)) of any Available Term Facility. Any such
cancellation shall reduce the relevant Available Term Commitments of
the Term Banks in respect of such Available Term Facility rateably.
15.2 PREPAYMENT OF THE TERM OUTSTANDINGS
The relevant Borrower shall, if it has given to the Facility Agent not
less than five Business Days' prior irrevocable notice to that effect
ensure that, the whole of any Term Advance or any part of any Term
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Advance (being an amount such that the Euro Amount of such Term Advance
will be reduced by an amount of not less than EUR 5,000,000) is prepaid
without penalty on the last day of any Interest Period relating to that
Term Advance which ends after the last day of the Term Availability
Period for the Term Facility under which such Term Advance was made.
15.2.1 Any prepayment so made after the last day of the relevant Term
Availability Period shall, unless otherwise agreed by an
Instructing Group be applied in prepayment of:
(a) FIRST, PRO RATA across the Term A1 Outstandings and
the Term A2 Outstandings;
(b) SECOND, PRO RATA across the Term B1 Outstandings and
the Term B2 Outstandings;
(c) THIRD, the Term C Outstandings; and
(d) FOURTH, to the extent the Term Outstandings have been
repaid in full, in repayment of the Revolving
Outstandings applied against Revolving Advances (and
cash advances forming part of Ancillary Outstandings)
and/or Bank Guarantees (and contingent Liabilities
under any Ancillary Facility) at the option of the
relevant Revolving Borrower (and any amounts so
prepaid may not be re-borrowed and the Revolving
Commitments and Ancillary Commitments of the Banks
shall be permanently reduced PRO RATA) PROVIDED THAT
amounts shall be applied PRO RATA between Revolving
Outstandings (other than Ancillary Outstandings) and
Ancillary Outstandings.
15.2.2 Any prepayment of Term Outstandings shall satisfy the
obligations under Clause 11.1 (TERM REPAYMENT INSTALMENTS) PRO
RATA in respect of such Term Outstandings.
15.2.3 Any prepayment of an instalment of Term Outstandings shall be
applied across PRO RATA across the Term Advances constituting
such instalment of Term Outstandings (unless otherwise agreed
by an Instructing Group).
15.2.4 Any amount prepaid in respect of Term Outstandings or the
Revolving Outstandings may not be redrawn.
15.3 CANCELLATION OF THE REVOLVING FACILITY
The relevant Borrower may, by giving to the Facility Agent not less
than five Business Days' prior notice to that effect, cancel the whole
or any part (being an amount of not less than EUR 5,000,000 (or its
equivalent) of the Available Revolving Facility. Any such cancellation
shall reduce the Available Revolving Commitment and Revolving
Commitment of each Revolving Bank rateably.
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15.4 NOTICE OF CANCELLATION OR PREPAYMENT
Any notice of cancellation or prepayment given by the Parent or the
relevant Borrower pursuant to this Clause 15 (CANCELLATION AND
VOLUNTARY PREPAYMENT) shall be irrevocable, shall specify the date upon
which such cancellation or prepayment is to be made and the amount of
such cancellation or prepayment and, in the case of a notice of
prepayment, shall oblige the relevant Borrower to make such prepayment
on such date.
15.5 CANCELLATION OF BANK GUARANTEES
Any Borrower which has requested a Bank Guarantee may give the Facility
Agent and the Fronting Bank not less than five Business Days' prior
notice of its intention to procure that the Fronting Bank's liability
under such Bank Guarantee is reduced to zero (whereupon it shall do
so).
15.6 REPAYMENT OF A BANK'S SHARE OF THE OUTSTANDINGS
If:
15.6.1 any sum payable to any Bank or the Fronting Bank by an Obligor
is required to be increased pursuant to Clause 16.1 (TAXES
PAYABLE); or
15.6.2 any Bank or the Fronting Bank claims indemnification from the
Parent under Clause 16.1 (TAXES PAYABLE) or Clause 17.1
(INCREASED COSTS),
the Parent may, whilst such circumstance continues, give the Facility
Agent at least five Business Days notice (which notice shall be
irrevocable) of its intention (a) if such circumstance relates to a
Bank to cancel, repay and/or provide Cash Collateral in respect of the
Commitment of such Bank or (b) if such circumstance relates to the
Fronting Bank, to procure the cancellation of or provide Cash
Collateral in respect of the Fronting Bank's Bank Guarantees.
15.7 REMOVAL OF A BANK OR THE FRONTING BANK
On the day the notice referred to in Clause 15.6 (REPAYMENT OF A BANK'S
SHARE OF THE OUTSTANDINGS) expires:
15.7.1 (if such circumstance relates to a Bank) the Borrower shall
repay such Bank's portion of the Advances and shall procure
either that such Bank's Bank Guarantee Proportion of each
relevant Bank Guarantee be reduced to zero (by reduction of
the amount of such Bank Guarantee, as the case may be, in an
amount equal to such Bank's Bank Guarantee Proportion) or that
Cash Collateral be provided in an amount equal to such Bank's
Guarantee Proportion of such Bank Guarantee; and
15.7.2 (if such circumstance relates to the Fronting Bank) the
Borrower shall procure that the Fronting Bank's liability
under any Bank Guarantee issued by it shall either be reduced
to zero or otherwise secured by the Borrower providing Cash
Collateral in an amount equal to the Fronting Bank's maximum
actual and contingent liabilities under such Bank Guarantee.
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15.8 NO FURTHER ADVANCES
A Bank for whose account a repayment is to be made under Clause 15.6
(REPAYMENT OF A BANK'S SHARE OF THE OUTSTANDINGS) shall not be obliged
to participate in the making of Advances on or after the date upon
which the Facility Agent receives the Parent's notice of its intention
to procure the repayment of such Bank's share of the Outstandings, and
such Bank's Available Term Commitments and Available Revolving
Commitment shall be reduced to zero.
15.9 NO OTHER REPAYMENTS
The Borrowers shall not repay all or any part of the Outstandings
except at the times and in the manner expressly provided for in this
Agreement (or, in relation to Ancillary Outstandings, in the documents
relating to such Outstandings).
15.10 NO REBORROWING
Subject to Clause 2.6 (DEBT PUSH-DOWN) none of the Borrowers shall be
entitled to reborrow any amount of any Term Facility which is repaid or
to reborrow any amount of the Revolving Facility which is repaid where
such repayment permanently reduces the Revolving Facility.
16. TAXES
16.1 TAXES PAYABLE
All present and future taxes payable in respect of, calculated by
reference to or deducted from payments under the Finance Documents
(other than taxes payable on the overall net income of any Bank or the
Facility Office through which it is lending by the jurisdiction in
which it is located) shall be for the account of the Obligors. If any
deduction or payment is required to be made, the relevant Obligor shall
make all necessary payments to ensure that, after the making of the
required deduction or payment, the relevant person receives and retains
(free from any liability) a net sum equal to the sum which it would
have received and so retained had no such deduction or payment been
made or required to be made and shall, within thirty days after it has
made such payment to any applicable authority, deliver to the Facility
Agent an original receipt (or a certified copy thereof) issued by such
authority evidencing the payment.
16.2 TAX CREDITS
If, following any payment by any Obligor under Clause 16.1 (TAXES
PAYABLE), any Bank shall receive or be granted a credit against or
remission for any tax payable by it, that Bank shall, subject to the
relevant Obligor having made such payment in accordance with Clause
16.1 (TAXES PAYABLE) and to the extent that such Bank can do so in its
sole opinion without prejudicing the retention of the amount of such
credit or remission and without prejudice to its right to obtain any
other relief or allowance which may be available to it and to conduct
its own tax affairs as it thinks fit, reimburse such amount as that
Bank shall in its absolute discretion certify to be the proportion of
such credit or remission as will leave that Bank (after such
reimbursement) in no worse position than it would have been in had no
payment been required under Clause 16.1 (TAXES PAYABLE). Nothing shall
oblige any Bank to rearrange its tax affairs or to disclose any
information regarding its tax affairs and computations which such Bank
considers confidential.
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16.3 CERTIFICATE OF RESIDENCE The Term B1 Banks and the Banks under the Term
A2 Facility shall use reasonable endeavours to provide Sanitec Kolo Sp.
z o.o. with a certificate of residence to enable Sanitec Kolo Sp. z
o.o. to make payments without any requirement to make any additional
payment under Clause 16.1 (TAXES PAYABLE).
17. INCREASED COSTS
17.1 INCREASED COSTS
Subject to Clause 19 (MITIGATION) if, by reason of (a) the introduction
of or any change in law or any regulation or in its interpretation or
administration and/or (b) compliance with any law or regulation made
after the date of this Agreement:
17.1.1 a Bank or any holding company of such Bank incurs a cost as a
result of, or is unable to obtain the rate of return on its
capital which it would have been able to obtain but for, such
Bank's entering into or assuming or maintaining a commitment
or issuing or performing its obligations under the Finance
Documents; or
17.1.2 there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining such Bank's
share of the Advances or any Unpaid Sum or any Bank Guarantee,
then the Parent shall indemnify that Bank or to enable that Bank to
indemnify its holding company in respect thereof, provided that each
Bank shall only be entitled to be indemnified under this Clause 17.1 to
the extent it has not been indemnified for the same costs under Clause
16.1 (TAXES PAYABLE).
17.2 INCREASED COSTS CLAIMS
A Bank intending to make a claim pursuant to Clause 17.1 (INCREASED
COSTS) shall notify the Facility Agent of the event giving rise to such
claim, whereupon the Facility Agent shall notify the Parent thereof.
18. ILLEGALITY
Subject to Clause 19 (MITIGATION) if, at any time, it is unlawful for a
Bank to perform any of its obligations as contemplated by this
Agreement or fund its participation in any Advances or issue Bank
Guarantees, then that Bank shall, promptly after becoming aware of the
same, deliver to the Parent through the Facility Agent a notice to that
effect and:
18.1.1 such Bank shall not thereafter be obliged to participate in
any Advance and the amount of its Available Term Commitments
and Available Revolving Commitment shall be immediately
reduced to zero; and
18.1.2 if the Facility Agent on behalf of such Bank so requires, the
Parent shall procure that each Borrower shall on the last day
of the Interest Period or Term of each outstanding Advance
occurring after the Facility Agent has notified the Parent or,
if earlier, such date as the relevant Bank shall have
specified in the
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notice delivered to the Facility Agent (being no earlier than
the last day of any applicable grace period permitted by law)
repay such Bank's share of any outstanding Advances together
with accrued interest thereon and all other amounts owing to
such Bank under the Finance Documents; and
18.1.3 ensure that the liabilities of such Bank or the Fronting Bank
under or in respect of each Bank Guarantee is reduced to zero
or otherwise secured by providing Cash Collateral in an amount
equal to such Bank's Bank Guarantee Proportion of such Bank
Guarantee or the Fronting Bank's maximum actual and contingent
liabilities under such Bank Guarantee in the currency or
currencies of such Bank Guarantee.
19. MITIGATION
If any of the Borrowers shall be obliged to make any payment pursuant
to Clause 16.1 (TAXES PAYABLE), Clause 17 (INCREASED COSTS) or Clause
18 (ILLEGALITY) or if any of the events set out in Clause 9 (MARKET
DISRUPTION) occur, the relevant Bank or Banks shall:
19.1.1 after consultation with the Facility Agent and the Parent and
to the extent that it can do so lawfully transfer all of its
rights, benefits and obligations hereunder to another
financial institution acceptable to the Parent and willing to
participate in the Facilities; or
19.1.2 without prejudice to its own position, consider what other
steps it might reasonably take (including a change in its
Facility Office) with a view to mitigating the effect of such
circumstances on the Borrowers.
20. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in Clause
20.1 (STATUS) to Clause 20.36 (NO REQUIREMENT TO INVESTMENT UNDER
ENVIRONMENTAL LAWS) on its own behalf and, in addition, the Parent
makes the representations set out therein on behalf of the Group
(assuming for the purposes of the representations made on the date
hereof and the Closing Date, that completion of the Acquisition has
occurred). The Parent acknowledges that the Finance Parties have
entered into this Agreement in reliance on those representations and
warranties.
20.1 STATUS
Each Material Group Entity is a corporation duly organised as a company
under the laws of its Relevant Jurisdiction and has the power and all
necessary governmental and other material consents, approvals, licences
and authorisations under any applicable jurisdiction to own its
property and assets and to carry on its business as currently
conducted.
20.2 GOVERNING LAW AND JUDGMENTS
In any proceedings taken in its Relevant Jurisdiction in relation to
the Finance Documents governed by German law, the choice of German law
as the governing law of such Finance Documents and any judgment
obtained in Germany will be recognised
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and enforced, subject to any qualifications as to matters of law in
force at the date hereof set out in the Legal Opinions.
20.3 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in the Finance Documents
are legal and valid obligations binding on it and enforceable against
it in accordance with the terms thereof.
20.4 EXECUTION AND POWER
Its execution of the Finance Documents and the Acquisition Documents to
which it is a party and the issue of the Offer Documents and its
exercise of its rights and performance of its obligations thereunder
(including, without limit, borrowing thereunder and granting any
security or guarantees contemplated thereunder) do not and will not:
20.4.1 conflict in any material respect with any agreement, mortgage,
bond or other instrument or treaty to which it is a party or
which is binding upon it or any of its assets, save with
regard to change of control clauses contained in any existing
financing documents of the Group solely breached by the
Acquisition and/or the Offers;
20.4.2 conflict with its constitutive documents; or
20.4.3 conflict with any applicable law.
It has the power to enter into and perform its obligations under the
Finance Documents, the Acquisition Documents and the Offer Documents to
which it is a party and all corporate and other action required to
authorise the execution, delivery and performance of the Finance
Documents, the Acquisition Documents and the Offer Documents to which
it is a party and the performance of its obligations thereunder has
been duly taken.
20.5 NO MATERIAL PROCEEDINGS
No action or administrative proceeding of or before any court,
arbitrator or agency (including, but not limited to, investigative
proceedings) which could reasonably be expected to have a Material
Adverse Effect has been started or threatened against it or its assets,
nor are there any circumstances likely to give rise to any such action
or proceedings.
20.6 AUDITED FINANCIAL STATEMENTS
The Original Financial Statements and its most recent audited financial
statements (unconsolidated and consolidated in the case of the Parent):
20.6.1 were prepared in accordance with accounting principles
generally accepted in the Relevant Jurisdiction and
consistently applied and in particular disclose all
liabilities (contingent or otherwise) and all unrealised or
anticipated losses of such Obligor or, as the case may be, any
member of the Group required to be disclosed by the accounting
principles generally accepted in the Relevant Jurisdiction;
and
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20.6.2 save as disclosed therein, give a true and fair view of the
financial condition and operations of such Obligor or, as the
case may be, the Group during the relevant period.
Its financial year end and, in the case of the Parent, the financial
year end of the Group is 31 December.
20.7 NO MATERIAL ADVERSE CHANGE
Since the date as at which the Original Financial Statements or, if
later, its then most recent audited financial statements
(unconsolidated and consolidated in the case of the Parent) were stated
to be prepared, there has been no material adverse change in its
business, operations, property, financial condition, performance or
prospects or, in the case of the Parent, the Group taken as a whole.
20.8 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order (a) to enable it lawfully to enter into, exercise
its rights under and perform and comply with the obligations expressed
to be assumed by it in the Finance Documents, (b) to ensure that the
obligations expressed to be assumed by it in the Finance Documents are
legal, valid, binding and enforceable and (c) to make the Finance
Documents admissible in evidence in the Relevant Jurisdiction have been
done, fulfilled and performed subject to any qualifications as to
matters of law in force at the date hereof set out in the Legal
Opinions.
20.9 CLAIMS PARI PASSU
Under the laws of the Relevant Jurisdiction in force at the date
hereof, the claims of the Finance Parties against it under the Finance
Documents will rank at least PARI PASSU with the claims of all its
other unsecured and unsubordinated creditors save those whose claims
are preferred solely by any bankruptcy, insolvency, liquidation or
other similar laws of general application.
20.10 NO FILING OR STAMP TAXES
Under the laws of the Relevant Jurisdiction in force at the date
hereof, it is not necessary that the Finance Documents be filed,
recorded or enrolled with any court or other authority in such
jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to the Finance Documents save as set out in any of the
Legal Opinions.
20.11 NO DEDUCTION OR WITHHOLDING
Under the laws of the Relevant Jurisdiction in force at the date
hereof, it will not be required to make any deduction or withholding
from any payment it may make hereunder.
20.12 REPORTS
The Reports have been prepared after due and careful consideration and
the Parent, having made all reasonable enquiries in the circumstances
of the Acquisition and the Offers and the negotiation of the
Acquisition Documents:
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20.12.1 is not aware of any material inaccuracy as to factual matters
relating to the Target Group contained in the Reports;
20.12.2 does not (as at the date hereof) regard as unreasonable or
unattainable any of the forecasts or projections set out in
any of the Reports (including the Business Plan) for the
financial year of the Group ending 31 December 2003.
20.12.3 believes (having made all reasonable enquiries) the
assumptions upon which the forecasts and projections in
relation to the Target Group contained in the Reports
(including the Business Plan) for the financial year of the
Group ending 31 December 2003 are based to be fair and
reasonable;
20.12.4 is not aware of any facts or matters not stated in the or the
Original Financial Statements, the omission of which make any
statements contained therein misleading in any material
respect; and
20.12.5 has made available for inspection and review all material
facts to all the persons responsible for or involved in
preparing the Reports in relation to the Parent and the
Target Group (which were known by and/or available to it).
20.13 GROUP STRUCTURE
20.13.1 The Group Structure Chart delivered to the Facility Agent
pursuant to Schedule 3 (CONDITIONS PRECEDENT) is true,
complete and accurate.
20.13.2 All necessary inter-company loans, transfers, share exchanges
and other steps if any resulting in the group structure set
out in the Group Structure Chart have been taken in
accordance with all relevant laws.
20.14 NO WINDING-UP
None of the events described in Clause 24.6 (INSOLVENCY AND
RESCHEDULING) or Clause 24.7 (WINDING-UP) have occurred in relation to
any Material Group Entity.
20.15 NO MATERIAL DEFAULTS
No member of the Group is in breach of or in default under any
agreement to which it is a party or which is binding on it or any of
its assets to an extent or in a manner which could reasonably be
expected to have a Material Adverse Effect.
20.16 INFORMATION
All of the written information supplied by the Parent, any other
Obligor or its advisers to the Facility Agent and/or the Banks and/or
their advisers in connection with the Finance Documents (including
without limitation, the Reports) was true, complete and accurate in all
material respects as at the date such information was supplied and is
not misleading in any material respect and neither the Parent nor any
other Obligor had knowingly failed to disclose to the Arranger or
Facility Agent any facts or circumstances the omission of which would
render any such information misleading in any material respect as at
the date such information was supplied PROVIDED THAT any reference in
this Clause 20.16 to "material respect" shall be construed in such that
a respect is material if the Facility Agent and/or any of the Banks
has, in its sole opinion,
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acting reasonably, taken such respect (if only amongst others) into
account in its decision process as to whether or not to participate in
the Facilities.
20.17 INFORMATION MEMORANDUM
The factual information contained in the Information Memorandum is
true, complete and accurate in all material respects, the financial
projections contained therein have been prepared on the basis of recent
historical information and on the basis of fair and reasonable
assumptions and nothing has occurred or been omitted that renders the
information contained in the Information Memorandum untrue or
misleading in any material respect.
20.18 ENVIRONMENTAL COMPLIANCE
Each member of the Group has duly performed and observed in all
material respects all Environmental Law, Environmental Permits and all
other material covenants, conditions, restrictions or agreements
directly or indirectly concerned with any contamination, pollution or
waste or the release or discharge of any toxic or hazardous substance
in connection with any real property which is or was at any time owned,
leased or occupied by any member of the Group or on which any member of
the Group has conducted any activity where failure to do so could
reasonably be expected to have a Material Adverse Effect.
20.19 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or is threatened against any
member of the Group where such claim would be reasonably likely, if
determined against such member of the Group, to have a Material Adverse
Effect.
20.20 ENCUMBRANCES AND FINANCIAL INDEBTEDNESS
Save for Permitted Encumbrances, no Encumbrance exists over all or any
of the assets of any member of the Group. Save for Permitted Financial
Indebtedness, it has no Financial Indebtedness. 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 member of the Group to create any Encumbrance (save for
Permitted Encumbrances) in favour of any person over any of its assets.
20.21 OWNERSHIP OF THE OBLIGORS
Each of the Obligors (other than the Parent and Fin Newco II) is (or
will be on and from the Closing Date) a subsidiary of the Parent.
20.22 NO EVENT OF DEFAULT
No Event of Default or Potential Event of Default has occurred which
has not been either remedied to the reasonable satisfaction of the
Facility Agent (acting on the instructions of an Instructing Group) or
expressly waived in writing.
20.23 CONSENTS AND APPROVALS
Save for approval of the Acquisition and the Offers by the EU
Commission and the relevant competition authority of Poland and only
with regard to the representation made on the date hereof, all
necessary consents and approvals to the transactions constituted by the
Acquisition and the Offers have been obtained and all material
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consents, licences and other approvals and authorisations reasonably
necessary and material for the conduct of the business of the Group as
carried on at the date hereof have been, or when required will be
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.
20.24 TAXATION
Each Material Group Entity has duly and punctually paid and discharged
all taxes, assessments and governmental charges imposed upon it or its
assets within the time period allowed therefor without imposing tax
penalties or creating any Encumbrance with priority to the Banks or the
security granted or evidenced by the Security Documents (save to the
extent payment thereof is being contested in good faith by the relevant
Material Group Entity and where payment thereof can lawfully be
withheld and would not result in an Encumbrance with priority to the
security created or evidenced by the Security Documents).
20.25 INTELLECTUAL PROPERTY
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its Intellectual Property which could
reasonably be expected to have a Material Adverse Effect.
20.26 GOOD TITLE TO ASSETS
Each Material Group Entity has good title to or valid leases of or
other appropriate licence, authorisation or consent to use its assets
necessary and material to carry on its business as presently conducted.
20.27 ACQUISITION DOCUMENTS AND OFFER DOCUMENTS
Save for minor or technical amendments, variations or waivers, there
has been no amendment, variation or waiver of the terms of the
Acquisition Documents or the Offer Documents or any other document or
evidence delivered or to be delivered as condition precedent under
Schedule 3 (CONDITIONS PRECEDENT) save as approved in writing by the
Facility Agent (acting on the instructions of an Instructing Group),
and it is not aware of any fact or matter which would render the
representations given by the Vendors in the Acquisition Agreement
untrue or inaccurate in any material respect.
20.28 LEGAL AND BENEFICIAL OWNER
It is the legal and, where applicable, beneficial owner of all assets
subject to any Permitted Encumbrances and to any security granted under
the Security Documents to which it is a party and in particular the
Parent is the legal and beneficial owner of the Target Company Shares
pledged to the Finance Parties.
20.29 ISSUE OF SHARE CAPITAL
Save to the extent contemplated in the Option Agreement or sub-clause
23.2.7 (SHARE CAPITAL) or consented to by the Facility Agent (acting on
the instructions of an Instructing Group) and save for
employee/management incentive schemes existing at the Closing Date on
customary terms, there are no agreements in force or corporate
resolutions passed which call for the present or further issue or
allotment of, or grant to any person the right (whether conditional or
otherwise) to call for the issue or allotment
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of any share or loan capital of the Parent or any member of the Group
(including an option or right of pre-emption or conversion).
20.30 PENSIONS
Adequate provisions are made for any liabilities in relation to pension
plans or schemes in respect of employees of members of the Group.
20.31 NO SUBSTANTIAL TRADING
Prior to the Merger, the Parent is and will remain a group management
and holding company and, save as contemplated by or otherwise in
connection with this Agreement, the other Finance Documents, the Junior
Documents, the Liquidity Facility Agreement, the Shareholder Loans, the
Junior On-Loan, the Junior Take-Out, the PIK Loan Restructuring, the
Shareholder Loan Restructuring, the Liquidity On-Loan, the Acquisition
Documents, the Offer Documents, the Senior Notes Loan Agreement, the
PIK Loan Agreement, the PIK On-Loan, any other shareholder loan and any
further purchase of Target Company Shares on the stock exchange and the
transactions contemplated hereby and thereby, the Parent has not traded
or undertaken any commercial activities of any kind and has no
liabilities or obligations (actual or contingent).
20.32 FIN NEWCO II
Save as contemplated by or otherwise in connection with this Agreement,
the other Finance Documents, the Junior Documents, the Junior On-Loan,
the PIK On-Loan and the transactions contemplated hereby and thereby,
Fin Newco II has not traded or undertaken any commercial activities of
any kind and has no liabilities or obligations (actual or contingent).
20.33 NO PURCHASE OF MARGIN STOCK
Neither the Parent nor any other member of the Group is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any margin
stock or "margin security" (within the meaning of Regulations G and U
of the Board of Governors of the Federal Reserve System of the United
States of America).
20.34 ERISA PLANS
20.34.1 The ERISA Plans are in substantial compliance with ERISA, no
ERISA Plan or Multi-employer Plan is insolvent or in
reorganisation, no ERISA Plan has an accumulated or waived
funding deficiency within the meaning of Section 412 of the
Code, neither the Parent nor any other member of the Group,
nor an ERISA Affiliate has incurred any material liability
(including any material contingent liability) to or on
account of a Plan or a Multi-employer Plan pursuant to
Sections 4062, 4063, 4064, 4201 or 4204 of ERISA, no
proceedings have been instituted to terminate any ERISA Plan
or, to the best knowledge of the Parent, a Multi-employer
Plan, and no condition exists which presents a material risk
to the Parent or any other member of the Group of incurring a
liability to or on account of an ERISA Plan or, to the best
knowledge of the Parent, a Multi-employer Plan pursuant to
any of the
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foregoing Sections of ERISA, where in any such case, it could
reasonably be expected to have a Material Adverse Effect.
20.34.2 No Reportable Event has occurred during the immediate
preceding five-year period with respect to any ERISA Plan of
any of the Obligors which could reasonably be expected to
have a Material Adverse Effect, and each ERISA Plan has
complied and has been administered in all material respects,
in accordance with applicable provisions of ERISA and the
Code, where a failure to do so could reasonably be expected
to have a Material Adverse Effect.
20.35 NO INVESTMENT COMPANY
No member of the Group is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 of the
United States of America or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of
1935 of the United States of America.
20.36 NO REQUIREMENT TO INVESTMENT UNDER ENVIRONMENTAL LAWS
No member of the Group is required by an Environmental Law to make any
investment or expenditure or to take or desist from taking any action
which would be (or, as the case may be, the non-fulfilment of which
would be) reasonably likely to have a Material Adverse Effect and in
particular, but without limitation, no present or past property
currently or formerly owned, occupied, leased or operated by any member
of the Group in the United States of America is listed or proposed for
listing on the National Priorities List pursuant to CERCLA or on the
Comprehensive Environmental Response Compensation Liability Information
Systems List or any similar state list or sites requiring remedial
action save where this is not reasonably likely to create a liability
for the Agent, the Banks or any of them.
20.37 REPETITION OF REPRESENTATIONS
The Repeated Representations shall be repeated by the relevant Obligor
by reference to the facts and circumstances then existing (a) on the
date each Notice of Drawdown is given; (b) by delivery by the Parent of
a certificate to such effect on the first day of each Interest Period;
(c) on each date on which an Advance is or is to be made (or any
Advance is rolled over) or a Bank Guarantee is or is to be made; (d) on
each date on which a company becomes (or it is proposed that a company
becomes) an Additional Obligor; (e) at the end of each Financial
Quarter of the Group and (f) on the Syndication Date and Clauses 20.12
(REPORTS), 20.13 (GROUP STRUCTURE) and 20.17 (INFORMATION MEMORANDUM)
shall be repeated on the Syndication Date PROVIDED THAT Clause 20.12
(REPORTS) shall on the Syndication Date be repeated in respect of the
Reports updated in accordance with Clause 23.1.25 (UPDATE OF REPORTS).
21. FINANCIAL INFORMATION
21.1 ANNUAL STATEMENTS
Each Obligor shall as soon as the same become available, but in any
event within 120 days after the end of each of its financial years,
deliver to the Facility Agent in sufficient copies for the Banks its
financial statements (and, in the case of the Parent, the consolidated
financial statements of the Group) for such financial year, audited by
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an internationally recognised firm of independent auditors licensed to
practise in its Relevant Jurisdiction, and the related auditor's
reports.
21.2 QUARTERLY STATEMENTS
21.2.1 Each Obligor shall as soon as the same become available, but
in any event within 60 days after the end of each financial
quarter of each of its financial years, deliver to the
Facility Agent in sufficient copies for the Banks its
financial statements and, in the case of the Parent, the
consolidated financial statements of the Group for such
period.
21.2.2 Such quarterly statements shall be in a format as attached in
Annex A to this Agreement or any other format as agreed by the
Facility Agent and shall include a balance sheet, profit and
loss account and cash flow statement and in respect of each
financial quarter commencing with the first financial quarter
ending after the Closing Date, a comparison with the
performance in the corresponding period of the previous year.
21.3 MONTHLY MANAGEMENT STATEMENTS
Each Borrower shall as soon as the same become available, but in any
event within 45 days after the end of each month, deliver to the
Facility Agent in sufficient copies for the Banks its financial
statements and, in the case of the Parent, the consolidated financial
statements of the Group for such period. Such monthly accounts shall be
on a month-to-month and cumulative basis and in a format as attached in
Annex B to this Agreement or any other format as agreed by the Facility
Agent and shall provide a management commentary thereon as to, INTER
ALIA, the Group's performance during such month, any material
developments or proposals affecting the Group or its business, together
with a comparison of actual performance by the Group with the
performance projected by the Budget for such period and with the
performance in the corresponding calendar month of the previous
financial year.
21.4 REQUIREMENTS AS TO FINANCIAL STATEMENTS
Each Obligor shall ensure that each set of financial statements
delivered by it pursuant to this Clause 21 is certified by an
Authorised Signatory of such Obligor as giving a true and fair view of
(in the case of audited financial statements) or fairly presents (in
the case of unaudited financial statements) its financial condition (or
the consolidated financial condition of the Group, as the case may be)
as at the end of the period to which those financial statements relate
and of the results of its (or, as the case may be, the Group's)
operations during such period.
21.5 COMPLIANCE CERTIFICATES
The Parent shall ensure that each set of financial statements delivered
by it pursuant to Clause 21.1 (ANNUAL STATEMENTS) and Clause 21.2
(QUARTERLY STATEMENTS) is accompanied by a Compliance Certificate
signed by its or as the case may be Fin Newco II's auditors (in the
case of a Compliance Certificate delivered with its annual audited
financial statements) and by two directors on behalf of the Parent or
as the case may be Fin Newco II (in the case of a Compliance
Certificate delivered with its annual and its quarterly financial
statements). The Parent shall procure that each Compliance
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Certificate sets out and certifies, INTER ALIA, the financial condition
of the Group and in the case of a Compliance Certificate accompanying
annual audited financial statements delivered in accordance with Clause
21.1 (ANNUAL STATEMENTS), also the amount of Excess Cash Flow.
21.6 BUDGET
The Parent shall as soon as the same becomes available, and in any
event not later than 45 days after the end of each financial year,
deliver to the Facility Agent in sufficient copies for the Banks an
annual Budget (in a form and as otherwise agreed with the Facility
Agent) prepared by reference to each Financial Quarter of the next
succeeding financial year of the Group including:
21.6.1 projected annual profit and loss accounts (including projected
turnover and operating costs) for and projected balance sheets
and cash flow statements on a quarterly basis for such
financial year on a consolidated basis for the Group;
21.6.2 projected capital expenditure to be incurred on an annual
basis for such financial year on a consolidated basis for the
Group;
21.6.3 projected Consolidated Adjusted EBITDA as at the end of each
Financial Quarter in such financial year;
21.6.4 a qualitative analysis and commentary from the management on
its proposed activities for such financial year; and
21.6.5 a three year outline forecast, comprising a profit and loss
account, balance sheet and cash flow statement.
The Parent shall forthwith provide the Facility Agent with details of
any material changes in the projections delivered under this Clause
21.6 as soon as it becomes aware of any such change.
21.7 OTHER FINANCIAL INFORMATION
Each Obligor shall from time to time on the request of the Facility
Agent, furnish the Facility Agent with such information about the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Group (or any member thereof) as a Bank
(acting through the Facility Agent) may reasonably require, in
particular all information and documents as may be required under
Sections 13, 13(a) and 18 of the German Banking Act (GESETZ UBER DAS
KREDITWESEN) or under any similar law applicable in any other
jurisdiction.
21.8 ACCOUNTING POLICIES
Each Obligor shall ensure that each set of financial statements
delivered pursuant to this Clause 21 is prepared using accounting
policies, practices, procedures and reference period consistent with
those applied in the preparation of the Original Financial Statements.
If, in relation to any such set of financial statements, the relevant
Obligor notifies the Facility Agent that there have been one or more
changes in any such accounting policies, practices, procedures or
reference period:
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21.8.1 the auditors of such Obligor shall provide (a) a description
of the changes and the adjustments which would be required to
be made to those financial statements in order to cause them
to use the accounting policies, practices, procedures and
reference period upon which the Original Financial Statements
were prepared and (b) sufficient information, in such detail
and format as may be reasonably required by the Facility
Agent, to enable the Banks to make an accurate comparison
between the financial position indicated by those financial
statements and the Original Financial Statements, and 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.
21.8.2 the Facility Agent and the Parent shall (in consultation with
the auditors of the Parent), at the Facility Agent's or the
Parent's request, negotiate in good faith with a view to
agreeing such amendments to the financial covenants in
Schedule 5 (FINANCIAL CONDITION) and/or the definitions used
therein as may be necessary to grant to the Banks protection
comparable to that granted on the date hereof, and any
amendments as agreed will have effect on the date agreed
between the Facility Agent (acting on the instructions of an
Instructing Group) and the Parent and if no such agreement is
reached within 30 days of the Facility Agent's request, the
Facility Agent shall (if so requested by an Instructing Group)
instruct (1) the auditors of the Parent or (2) independent
accountants (approved by the Parent or, in the absence of such
approval within 5 days of request by the Facility Agent
therefor, a firm with recognised expertise) to determine any
amendment to Schedule 5 (FINANCIAL CONDITION) which those
auditors or, as the case may be, accountants (acting as
experts and not arbitrators) consider appropriate to grant to
the Banks protection comparable to that granted on the date
hereof, which amendments shall take effect when so determined
by those auditors, or as the case may be, accountants. Where
auditors or independent accountants are appointed hereunder,
the reasonable cost and expenses of those auditors shall be
for the account of the Parent.
21.9 AUDITOR'S LETTER
The Parent and/or Fin Newco II shall at the request of the Facility
Agent require and authorise the relevant Auditors to discuss with the
Facility Agent the information and other matters related to or arising
out of the annual audit of the Group or Fin Newco II by the Auditors.
22. FINANCIAL CONDITION
22.1 FINANCIAL CONDITION
The Parent shall ensure that the financial condition of the Group shall
adhere to the provisions as set out in Schedule 5 (FINANCIAL
CONDITION).
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23. COVENANTS
23.1 POSITIVE COVENANTS
Each of the Obligors shall, and the Parent shall procure that each
member of the Group shall, comply with the following:
23.1.1 MAINTENANCE OF LEGAL VALIDITY AND LEGAL STATUS: Do all such
things as are necessary to maintain its existence as a legal
person and obtain, comply with the terms of and do all that
is necessary to maintain in full force and effect all
authorisations, approvals, licences, consents and exemptions
required in or by the laws of the Relevant Jurisdiction to
enable it lawfully to enter into and perform its obligations
under the Finance Documents to which it is a party and to
ensure the legality, validity, enforceability or
admissibility in evidence in the Relevant Jurisdiction of the
Finance Documents and, on request of the Facility Agent,
supply copies (certified by a director of the relevant member
of the Group as true, complete and up to date) of any such
authorisations, approvals, licences, consents and exemptions.
23.1.2 INSURANCE: Effect and maintain insurances on and in relation
to its business and assets with reputable underwriters or
insurance companies against such risks and to such extent as
is usual for prudent companies carrying on a business such as
that carried on by such member of the Group (including, but
not limited to, loss of earnings, business interruption,
directors and officers liability cover). The Parent shall (if
so requested in writing) supply the Facility Agent with
copies of all such insurance policies or certificates of
insurance in respect thereof or (in the absence of the same)
such other evidence of the existence of such policies and
shall, in any event, notify the Facility Agent of any
material changes to its insurance cover made from time to
time.
23.1.3 ENVIRONMENTAL COMPLIANCE: 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, breach of which (or failure to
obtain, maintain or take which) could reasonably be expected
to have a Material Adverse Effect.
23.1.4 ENVIRONMENTAL CLAIMS: Inform the Facility Agent in writing as
soon as reasonably practicable upon becoming aware of the
same if any Environmental Claim has been commenced or is
threatened against it or any member of the Group in any case
where such claim could be reasonably likely, if determined
against it or such member of the Group, to have a Material
Adverse Effect or of any facts or circumstances which will or
are reasonably likely to result in any Environmental Claim
being commenced or threatened against it or any member of the
Group in any case where such claim could be reasonably
likely, if determined against it or such member of the Group,
to have a Material Adverse Effect.
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23.1.5 NOTIFICATION OF EVENTS OF DEFAULT: Promptly inform the
Facility Agent of the occurrence of any Event of Default or
Potential Event of Default and, upon receipt of a written
request to that effect from the Facility Agent, confirm to
the Facility Agent that, save as previously notified to the
Facility Agent or as notified in such confirmation, no Event
of Default or Potential Event of Default has occurred.
23.1.6 CLAIMS PARI PASSU: Ensure that at all times the claims of the
Finance Parties against it under the Finance Documents rank
at least PARI PASSU with the claims of all its other
unsecured and unsubordinated creditors save those whose
claims are preferred by any bankruptcy, insolvency,
liquidation or other similar laws of general application.
23.1.7 CONSENTS AND APPROVALS: Comply with all applicable laws,
rules, regulations and orders and obtain and maintain all
governmental and regulatory consents and approvals the
failure to comply with which could be reasonably likely to
have a Material Adverse Effect.
23.1.8 CONDUCT OF BUSINESS: In respect of each Material Group
Entity, 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 and does all things necessary to
obtain, preserve and keep in full force and effect all rights
including, without limitation, all franchises, contracts,
licences, consents and other rights which are necessary and
material for the conduct of its business.
23.1.9 TAX: In respect of each Material Group Entity, duly and
punctually pay and discharge (a) all taxes, assessments and
governmental charges imposed upon it or its assets within the
time period allowed therefor without imposing penalties and
without resulting in an Encumbrance with priority to any Bank
or any security purported to be granted by or created
pursuant to the Security Documents (save to the extent
payment thereof is being contested in good faith by it or the
relevant member of the Group and where payment thereof can
lawfully be withheld and would not result in an Encumbrance
with priority to the security created or evidenced by the
Security Documents) and (b) all lawful claims relating to (a)
above which, if unpaid, would by law become Encumbrances upon
its assets.
23.1.10 PRESERVATION OF ASSETS: In respect of each Material Group
Entity, maintain and preserve all of its assets that are
necessary and material in the conduct of its business as
conducted at the date hereof in good working order and
condition, ordinary wear and tear excepted.
23.1.11 SECURITY PRESERVATION: At its own expense, take all such
action as the Facility Agent or the Security Agent may
reasonably require for the purpose of perfecting or
protecting the Facility Agent's or Security Agent's rights
under and preserving the security interests intended to be
created by any of the Finance Documents and following the
making of any declaration pursuant to Clause 24.22
(ACCELERATION AND CANCELLATION) or Clause 24.23 (ADVANCES DUE
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ON DEMAND) for facilitating the realisation of any such
security or any part thereof.
23.1.12 ADDITIONAL SECURITY: To the extent legally permissible, (i)
As soon as possible but in any event within six months of the
Closing Date promptly create or procure the creation of
security over the shares or interests in each Material Group
Entity and (ii) as soon as possible but in any event within
six months of the Closing Date promptly procure that each
Material Group Entity becomes a Guarantor hereunder in
accordance with Clause 37 (ADDITIONAL GUARANTORS) and that
each member of the Group which has become a Material Group
Entity becomes as soon as legally possible a Guarantor
hereunder in accordance with Clause 37 (ADDITIONAL
GUARANTORS) and (iii) as soon as possible but in any event
within one month from the Merger promptly procure that any
existing security granted by any member of the Group
incorporated in Finland is re-executed subject to an
extension of the obligations thereby secured and that any
member of the Group incorporated in Finland grants additional
security over its material assets. To the extent legally
permissible and as required by the Facility Agent (acting on
the instructions of an Instructing Group) from time to time,
promptly create or procure the creation of security over its
material assets, over the shares or interests in each member
of the Group and over the material assets of each member of
the Group, in favour of the Finance Parties and in a form
satisfactory to the Facility Agent (acting on the
instructions of an Instructing Group) to secure all or any of
the obligations of the Obligors under the Finance Documents.
23.1.13 DIVIDEND PAYMENTS: As soon as possible after the date of the
Fourth Amendment Agreement but in any event by the date which
falls one year after the date of the Fourth Amendment
Agreement procure that each Approved Additional Borrower (i)
becomes an Additional Borrower hereunder in accordance with
Clause 36 (ADDITIONAL BORROWERS), (ii) declares a dividend in
the maximum amount legally permissible and (iii) draws a
Push-Down Advance in the amount required to fund the dividend
payments referred to in (ii) above.
23.1.14 LITIGATION: Advise the Facility Agent forthwith of the
details of each litigation, arbitration or administrative
proceeding pending or threatened against any member of the
Group which is likely to result in a liability of such member
of the Group in an aggregate amount in excess of EUR
2,000,000 (or its equivalent).
23.1.15 ACCESS: While an Event of Default or Potential Event of
Default is continuing and is not remedied or waived, ensure
that any one or more representatives, agents and advisers of
the Facility Agent and/or any of the Banks will be allowed to
have access to the assets, books and records of each member
of the Group and to inspect the same during normal business
hours.
23.1.16 VENDOR WARRANTIES: Immediately inform the Facility Agent upon
any material claims for breach of contract or warranty by, or
misrepresentation by,
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or indemnity or other claim against the Vendors or any
affiliate thereof or any of their respective employees,
officers or advisers or any other party under or in
connection with any Acquisition Documents and diligently
pursue all such material claims unless the board of directors
of the relevant member of the Group has reasonably resolved
after due consideration that any such action would not be in
the best interests of that member of the Group and the
Facility Agent, acting reasonably and on the instructions of
an Instructing Group has consented in writing to such claim
not being made.
23.1.17 PENSIONS: Ensure that adequate provisions are made for
liabilities relating to pension schemes in respect of
employees of members of the Group in accordance with
applicable law and/or accounting principles.
23.1.18 SYNDICATION: Each Obligor shall provide reasonable assistance
to the Arranger in the preparation of the Information
Memorandum and the syndication of the Facilities (including,
without limitation, by taking all reasonable steps to make
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 the Syndication Date as
set out in more detail in the Syndication Letter.
23.1.19 HEDGING: Each Obligor approved by the Facility Agent shall,
within one hundred and fifty (150) days of the Closing Date
or within one hundred and fifty (150) days after its
succession to this Agreement (as applicable), enter into
hedging arrangements satisfactory to the Facility Agent
(acting on the instruction of an Instructing Group) with the
Arranger, a Bank or Banks or any other bank or financial
institution offering competitive arrangement in order to cap
its total interest cost in respect of at least 50 per cent of
the Term Outstandings exceeding in aggregate EUR 100,000,000
for a minimum period acceptable to the Facility Agent (acting
on the instruction of an Instructing Group) being not less
than 3 years as set out in more detail in the Hedging
Strategy Letter.
23.1.20 MATERIAL ADVERSE EFFECT: Promptly inform the Facility Agent
of any material adverse effect on the business, operations or
financial condition of itself or the Group taken as a whole.
23.1.21 INTELLECTUAL PROPERTY: Do all acts as are reasonably
practicable to maintain, protect and safeguard the
Intellectual Property necessary for the business of any
Material Group Entity and not terminate or discontinue the
use of any such Intellectual Property by way of sale of such
Intellectual Property and 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 or any part thereof is
subject.
Each Obligor shall not, and shall, to the extent legally
possible, ensure that each Group member shall not:
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(a) use or allow to be used, or take any step or omit to
take any step in respect of any of the Intellectual
Property, in any way which could reasonably be expected
to materially and adversely affect the existence or
value thereof or imperil the right of any Group member
to use any such property; and
(b) without the prior written consent of the Facility Agent
(acting on the instructions of an Instructing Group),
(by way of sale) dispose of or transfer any contract or
licence in respect of Intellectual Property other than
in the ordinary course of its business.
23.1.22 MERGER: Procure that as soon as possible but in any event
Within nine months of the date on which the Parent is holding
more than 90% of the shares in the Target Company the Merger
occurs.
23.1.23 LIQUIDITY FACILITY AGREEMENT: The parties hereto agree to
enter into the Liquidity Facility Agreement within one month
hereof, and further agree that the Liquidity Facility
Agreement be on the terms as set out in the term sheet agreed
between the parties, as modified by an exclusivity letter from
the Arranger to BC Partners and otherwise on the terms of this
Agreement.
23.1.24 COMPETITION AUTHORITY APPROVAL: The Parent shall as soon as
possible but in any event by Monday 30 April 2001 apply for
(or procure application for) the approval of the European
Commission, the relevant competition authority of Poland and,
if required, the competition authorities of the United States
with regard to the Acquisition and, if required, the Offers.
23.1.25 UPDATE OF REPORTS/UPSTREAMING REPORTS: As soon as possible but
in any event prior to 30 September 2001 the Parent shall
deliver or procure the delivery of (i) each of the Reports
(other than the Business Plan) in an updated form and
substance (each addressed to or together with a reliance
letter in favour of the Facility Agent for itself and the
Banks, from time to time, each such Report in form and
substance satisfactory to the Facility Agent) and (ii) an
update of the evidence to be delivered under Schedule 3 G4.
such update to cover also specifically each Material Group
Entity in each relevant jurisdiction.
23.1.26 SHAREHOLDERS AGREEMENT: Within two weeks of it being executed
deliver to the Facility Agent the Shareholders Agreement, in
sufficient copies for the Banks.
23.1.27 PLEDGE OVER PARENT SHARES: Prior to the Merger Dutch Newco
shall effect a pledge over the shares in the Parent for the
benefit of the Finance Parties, the Junior Finance Parties and
the Liquidity Lender ranking ahead of equivalent security
granted in favour of the Trustee. Prior to the voluntary
liquidation of Dutch Newco, Lux Newco II shall (i) either
effect a pledge over the shares in the Parent for the benefit
of the Finance Parties and the Junior Finance Parties ranking
ahead of equivalent security granted in favour of the Trustee
or shall (ii) confirm its recognition of the pledge executed
by Dutch Newco.
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23.2 NEGATIVE COVENANTS
None of the Obligors shall and the Parent shall procure that no member
of the Group shall do (by action or omission) the following:
23.2.1 NEGATIVE PLEDGE: Create or permit to subsist any Encumbrance
over all or any of its assets other than a Permitted
Encumbrance. Create any restriction or prohibition on
Encumbrances over all or any of its assets.
23.2.2 LOANS AND GUARANTEES: Make or permit to subsist any loans by
it, grant or permit to subsist any credit or other financial
accommodation (save in the ordinary course of trade) or give
or permit to subsist or have outstanding any guarantee or
indemnity (except as required 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 SAVE FOR:
(a) trade credit, guarantees or indemnities granted in the
ordinary course of trading and upon terms usual for such
trade; or
(b) Permitted Transactions.
23.2.3 FINANCIAL INDEBTEDNESS: 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 Financial Indebtedness.
23.2.4 DISPOSALS: Save as with regard to the Parent and Fin Newco II
as contemplated in and in accordance with Clause 36.3
(APPROVED SUBSTITUTE BORROWER) and Clause 37.3 (APPROVED
SUBSTITUTE GUARANTOR) dispose of, by one or more transactions
or series of transactions (whether related or not), the whole
or any part of its assets or its business or undertakings
other than by way of a Permitted Disposal.
23.2.5 MERGERS: Merge or consolidate with any other person, enter
into any demerger transaction or participate in any other type
of corporate reconstruction (save for (i) the Merger, PROVIDED
THAT it has either been evidenced to the Facility Agent and
the Banks by a clean legal opinion to such extent that the
pledge over the Target Shares survives the Merger or there has
been put in place new like security over the shares in the
merged entity and (ii) a merger from a wholly owned subsidiary
of the Parent with or into another wholly owned subsidiary of
the Parent, provided that such merger would not prejudice the
security interest of the Facility Agent in any of such
subsidiaries in any respect).
23.2.6 ACQUISITIONS: Other than the Acquisition, acquisitions of
Target Company Shares or where permitted by Clause 23.2.7
(SHARE CAPITAL) (i) 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 (ii) purchase or otherwise acquire any
assets (other than in the ordinary course of business) or
(without limitation to any of the foregoing)
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acquire any business or interest therein or agree to do so or
(iii) form, or enter into, any partnership, consortium, joint
venture or other like arrangement or agree to do so or (iv)
purchase, subscribe for or otherwise acquire any gilts, notes,
bonds, commercial paper, certificates of deposit or other debt
securities or any interest therein, SAVE WHERE in relation to
any Obligor (other than the Parent and Fin Newco II) the
aggregate net consideration paid in respect of such shares,
assets, business or interest does not exceed (i) EUR 1,000,000
(or its equivalent) in respect of any single acquisition, or
(ii) EUR 3,000,000 (or its equivalent) in any twelve months
period (in each case including the amount of any borrowings of
the acquired target remaining outstanding after the
acquisition) and PROVIDED THAT in each case the relevant
Obligor has, in the reasonable view of the Facility Agent
(acting on the instructions of any Instructing Group)
undertaken appropriate due diligence in connection with such
acquisitions.
23.2.7 SHARE CAPITAL: Save in accordance with the terms of the
Warrants, issue or redeem or repurchase, purchase, defease or
retire any shares or partnership interest or grant any person
the right (whether conditional or unconditional) to call for
the issue or allotment of any partnership interest share or
loan capital of the Parent, Fin Newco II or any member of the
Group (including an option or right of pre-emption or
conversion) or any other equity investments, howsoever called
or alter any rights attaching to its issued shares (including
ordinary and preference shares) SAVE FOR:
(a) any issue of shares or share capital by an Obligor to
another wholly-owned member of the Group;
(b) the redemption, repurchase, defeasance or retirement
by or purchase by a member of the Group of shares or
share capital owned by an Obligor;
(c) the purchase by the Parent of Target Company Shares;
(d) any such actions required pursuant to the Junior
Documents and permitted under the Intercreditor
Agreement; and
(e) any repayment of capital reserves or similar by the
Approved Additional Borrowers in connection with the
accession of the Approved Additional Borrowers to
this Agreement and the Push-Down Advances.
23.2.8 DIVIDENDS AND DISTRIBUTIONS: Pay, make or declare any dividend
or other distribution or payment whatsoever (whether directly
or indirectly and whether by way of reduction of share
capital, retirement of shares or otherwise) to any of its
affiliates or shareholders SAVE to the extent entered into
pursuant to or in accordance with Permitted Transactions and
as expressly permitted under Clause 23.2.11 (FEES).
23.2.9 AMENDMENTS: Amend, vary, supplement or terminate any of the
Acquisition Documents, the Offer Documents or any other
document delivered to the
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Facility Agent pursuant to Clauses 2.3 (CONDITIONS PRECEDENT)
or 36.2 (BORROWER CONDITIONS PRECEDENT), Clause 36.3 (APPROVED
SUBSTITUTE BORROWER), 37.2 (GUARANTOR CONDITIONS PRECEDENT) or
37.3 (APPROVED SUBSTITUTE GUARANTOR) or waive any right
thereunder which, in any such case, might reasonably be
expected materially and adversely to affect the interests of
the Banks.
23.2.10 CHANGE OF BUSINESS: Make any material changes to the general
nature of the business of the Group as carried on at the date
hereof, or carry on any other business which results in any
material change to the nature of such business.
23.2.11 FEES: Other than as required or permitted hereunder, pay any
fees or commissions or make any distribution to any person
other than (a) the Acquisition Costs and (b) any fees payable
on arm's length terms to third parties who have rendered
service or advice to such member of the Group required by
such member of the Group in the ordinary course of business
and (c) the Senior Notes Costs.
23.2.12 ARM'S LENGTH BASIS: Other than in accordance with Clause
23.2.11 (FEES), enter into any arrangement or contract with
any of its affiliates or any other member of the Group SAVE
WHERE both parties to the arrangement are Obligors or, in any
other case, (a) such arrangement or contract is entered into
on an arm's length basis and is fair and equitable to such
member of the Group and (b) if so requested by the Facility
Agent the benefit of such arrangement is charged as security
for amounts owing hereunder (to the extent legally possible)
and (c) if so requested by the Facility Agent, claims in
respect of such arrangements are subordinated to the claims
of the Finance Parties under the Finance Documents (to the
extent legally possible); for the purposes of this sub-clause
23.2.12 "AFFILIATE" of the specified person shall mean any
other person directly or indirectly controlling or controlled
by or under common control with such specified person or
which is a director, officer or partner (limited or general)
of such specified person; for the purposes of this definition
"control", when used with respect of any specified person,
means the possession, direct or indirect, of the power to
vote five per cent. or more of the securities, partnership
interests, shares or similar instruments having ordinary
voting power for the election of directors or the power to
direct or cause the direction of the management and policies
of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
23.2.13 TREASURY TRANSACTIONS: Enter into any Treasury Transaction
which is not a Permitted Treasury Transaction.
23.2.14 ACCOUNTING REFERENCE DATE: Without the prior written consent
of the Facility Agent (acting on instructions of an
Instructing Group) change its accounting reference date or
the date of its financial year end.
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23.2.15 PARENT: Prior to the Merger, the Parent shall not carry on
any significant business other than as the group management
and holding company of the Group and shall not own any
significant assets other than shareholdings in its
subsidiaries and intra Group credit balances and credit
balances in bank accounts.
23.2.16 FIN NEWCO II: Save as contemplated by or otherwise in
connection with this Agreement, the other Finance Documents,
the Junior Documents, the Junior On-Loan, the PIK On-Loan and
the transactions contemplated hereby and thereby, Fin Newco
II shall not trade or undertake any commercial action, shall
not own any assets or incur or have any obligations or
liabilities (actual or contingent).
23.3 ACQUISITION OF TARGET COMPANY
23.3.1 The Parent shall and shall ensure that each other Obligor
shall:
(a) deliver to the Facility Agent, with sufficient copies
for the Banks, the Offer Documents and without undue
delay upon availability thereof, any court's or other
relevant authority's valuation report in relation to the
Target Company and a copy of the minutes of the
shareholder meeting approving the Merger, and any
document evidencing the Merger in relation thereto;
(b) provide the Facility Agent with evidence satisfactory to
the Facility Agent that any requested drawdown for the
purpose of payments pursuant to the Acquisition or the
Offers shall partially fund, save as otherwise consented
to by the Banks, a maximum share price per share in the
Target Company of up to EUR 14.60;
(c) in relation to the Acquisition and the Offers, comply in
all material respects with all relevant laws and
regulations, including the Finnish Securities Market Act
and Guideline No 204.1 of the Finnish Financial
Supervision Authority and all requirements of relevant
regulatory authorities;
(d) subject to the Acquisition Documents and the Offer
Documents, at the request of the Facility Agent, provide
the Facility Agent with any material information in the
possession of the Group relating to the Acquisition or
the Offers as the Facility Agent may reasonably request;
(e) use reasonable endeavours to ensure that no publicity
material, press releases or other public documents in
relation to the Acquisition or the Offers (other than
those required by law or regulation) are published or
released by or on behalf of it, or its advisers which
refer to any of the Facility Agent, the Arranger, the
Security Agent or the Banks, this Agreement or the
Facilities unless such reference and the context in
which
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it appears have previously been approved by the Facility
Agent and the Arranger (such approval not to be
unreasonably withheld or delayed); and
(f) not withhold its consent to any reasonable request by
the Arranger to publicise the Facilities and the
involvement of the Arranger, the Facility Agent, the
Security Agent and the Banks therein and the
transactions contemplated thereby after the Closing
Date.
23.3.2 The Parent is not aware of any event, fact or circumstance
which would constitute a material breach of warranty or
misrepresentation or material breach of contract or other
material claim against any Vendor if all references in the
Acquisition Documents to "so far as any Vendor is aware" or
similar were deleted.
23.4 FIN NEWCO II AND THE GROUP
Each Obligor and the Parent undertake for themselves and to procure, in
relation to any member of the Group which is a subsidiary of theirs,
that without prejudice to any other restriction contained in any of the
Finance Documents:
23.4.1 no account of Fin Newco II shall be included in any
arrangement whereby credit or debit balances on accounts of
one or more members of the Group may be netted against debit
or credit balances on accounts in the name of other members of
the Group;
23.4.2 no property shall be sold, leased, transferred or otherwise
disposed of (whether or not for adequate consideration) by any
member of the Group to Fin Newco II;
23.4.3 (a) no payment of principal of or interest, charges, fees
or other amounts on any loan or other financial
accommodation made by Fin Newco II to any member of
the Group shall be made other than payments necessary
to fund payments by Fin Newco II under the Junior
Documents, the PIK On-Loan, the PIK Loan
Restructuring, any payments funded by the Junior
Take-Out and any payments agreed to in writing by an
Instructing Group in each case to the extent
permitted under the Intercreditor Agreement and/or
the Subordination Agreement;
(b) no loan or other financial accommodation shall be
provided by any member of the Group to Fin Newco II;
and
(c) no other transfer of monies or the right thereto
shall be made by any member of the Group to Fin Newco
II;
23.4.4 no guarantee, indemnity or other support shall be given by any
member of the Group, and no participation, funding, take-out
or like arrangement shall be entered into by any member of the
Group in relation to any obligation of Fin Newco II save under
the Junior Documents, the PIK On-Loan, the Junior Take-Out and
the PIK Loan Restructuring.
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24. EVENTS OF DEFAULT
Each of Clause 24.1 (FAILURE TO PAY) to Clause 24.21 (MATERIAL ADVERSE
CHANGE) describes circumstances which constitute an Event of Default
for the purposes of this Agreement.
24.1 FAILURE TO PAY
Any sum due from any Obligor under the Finance Documents is not paid at
the time, in the currency and in the manner specified herein unless
such failure to pay is solely caused by technical difficulties with the
banking system in relation to the transmission of funds and payment is
made within five Business Days of the due date.
24.2 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor
in any Finance Document or in any notice or other document, certificate
or statement delivered by it pursuant thereto or in connection
therewith is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made.
24.3 FINANCIAL CONDITION
At any time any of the requirements of Clause 22.1 (FINANCIAL
CONDITION) is not satisfied.
24.4 OTHER OBLIGATIONS
An Obligor fails duly to perform or comply with any other obligation
expressed to be assumed by it in the Finance Documents (including the
application of the proceeds of any drawdown for the relevant purposes
set out in Clause 2.2 (PURPOSE AND APPLICATION)) and such failure, if
capable of remedy, is not remedied within ten Business Days.
24.5 CROSS DEFAULT
Any Financial Indebtedness of any member of the Group is not paid when
due (or within any grace period originally provided), any Financial
Indebtedness of any member of the Group is declared to be or otherwise
becomes due and payable prior to its specified maturity, any commitment
for any Financial Indebtedness of any member of the Group is cancelled
or suspended by a creditor of any member of the Group or any creditor
of any member of the Group becomes entitled to declare any Financial
Indebtedness of any member of the Group due and payable or to cancel
any commitment for Financial Indebtedness prior to its specified
maturity, PROVIDED THAT it shall not constitute an Event of Default if
the aggregate amount (or its equivalent in euro) of all such Financial
Indebtedness of the Group is less than EUR 2,000,000 and FURTHER
PROVIDED THAT it shall not constitute an Event of Default if this
Clause 24.5 is triggered solely by the operation of a change of control
clause (incorporated in a financing agreement in existence at the
Closing Date) itself triggered solely by the closing of the
Acquisition, where any Financial Indebtedness becoming payable is paid
immediately.
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24.6 INSOLVENCY AND RESCHEDULING
Any Material Group Entity is unable to pay its debts as they fall due,
commences negotiations with any one or more of its creditors with a
view to the general readjustment or rescheduling of its indebtedness or
makes a general assignment for the benefit of or a composition with its
creditors or any Material Group Entity files for insolvency or is
required by law to file for insolvency or the competent court
institutes insolvency proceedings against any Material Group Entity or
any event occurs with respect to any Material Group Entity which, under
the laws of any jurisdiction to which it is subject or in which it has
assets, has a similar or analogous effect.
24.7 WINDING-UP
Any Material Group Entity takes any corporate action or other steps are
taken or legal proceedings are started for its winding-up, dissolution,
administration or reorganisation (other than pursuant to a solvent
reorganisation previously approved in writing by the Facility Agent
(acting on instructions of an Instructing Group)) or for the
appointment of a liquidator, receiver, administrator, administrative
receiver, conservator, custodian, trustee or similar officer of it or
of any part or all of its revenues and assets (or any event occurs or
proceedings are taken with respect to any Material Group Entity which,
under the laws of any jurisdiction has a similar or analogous effect to
any of the foregoing in this Clause 24.7).
24.8 EXECUTION OR DISTRESS
Any execution or distress is levied against, or any encumbrancer take
possession of, the whole or any part of, the property, undertaking or
assets of any Material Group Entity or any event occurs which under the
laws of any jurisdiction has a similar or analogous effect in respect
of indebtedness exceeding EUR 250,000 (or its equivalent) in aggregate
at any time and which, in any case, is not stayed or discharged within
fourteen days after such levy, taking of possession or effect and
during such fourteen day period is contested in good faith by
appropriate means diligently pursued.
24.9 FAILURE TO COMPLY WITH FINAL JUDGEMENT
Any Material Group Entity fails to comply with or pay any sum due from
it under any final judgement or any final order made or given by any
court of competent jurisdiction.
24.10 GOVERNMENTAL INTERVENTION
By or under the authority of any government, (a) the management of any
Material Group Entity is wholly or partially displaced or the authority
of any Material Group Entity in the conduct of its business is wholly
or partially curtailed or (b) all or a majority of the issued shares of
any Material Group Entity or the whole or any material part of its
revenues or assets is seized, nationalised, expropriated or
compulsorily acquired.
24.11 OWNERSHIP OF THE OBLIGORS
After the Closing Date, any Obligor (other than the Parent and Fin
Newco II) ceases to be a subsidiary of the Parent, except pursuant to a
disposal permitted hereunder.
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24.12 THE GROUP'S BUSINESS
Any Material Group Entity ceases to carry on the business it carries on
at the date hereof or enters into any unrelated business.
24.13 REPUDIATION
Any Finance Document or the security intended to be constituted by or
the subordination effected under any of the Finance Documents, the
Acquisition Agreement or the Offer Documents is repudiated by any
person (other than a Finance Party) or any Finance Document, the
Acquisition Agreement or the Offer Documents is not or ceases to be in
full force and effect or the validity or applicability thereof to any
sums due or to become due thereunder is disaffirmed by or on behalf of
any Obligor.
24.14 ILLEGALITY
At any time any Obligor no longer has the legal power to perform its
obligations under the Finance Documents to which it is a party or to
own its material assets or to carry on its business in materially the
same fashion as before or at any time it is or becomes unlawful for an
Obligor to perform or comply with any or all of its obligations under
any Finance Document to which it is a party or any of the obligations
of an Obligor thereunder are not or cease to be legal, valid, binding
and enforceable.
24.15 AUDITOR'S QUALIFICATION
The auditors of the Parent or any other Obligor qualify their annual
audit report to the consolidated accounts of the Group or the
unconsolidated accounts of any Obligor in a manner which is, in the
opinion of an Instructing Group, material in the context of the
Facilities.
24.16 ENVIRONMENTAL
Any member of the Group breaches any Environmental Law or any
Environmental Claim is made or threatened against any member of the
Group which, in either case, could be likely to have a Material Adverse
Effect.
24.17 LITIGATION
Any litigation, arbitration, administrative proceedings or governmental
or regulatory investigations, proceedings or disputes are commenced or
threatened against any member of the Group or its respective assets or
revenues or there are any circumstances likely to give rise to any such
litigation, arbitration, administrative proceedings or governmental or
regulatory investigations, proceedings or disputes which is likely to
be adversely determined and, if adversely determined, could be
reasonably likely to have a Material Adverse Effect.
24.18 FAILURE OF SECURITY
Any of the security interests created or to be created under the
Security Documents ceases to be legal, valid and binding and this has
not been remedied to the satisfaction of an Instructing Group within
ten Business Days.
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24.19 INTERCREDITOR AGREEMENT, SUBORDINATION AGREEMENT AND SENIOR NOTES LOAN
SUBORDINATION AGREEMENT Any party to the Intercreditor Agreement or the
Subordination Agreement or the Senior Notes Loan Subordination
Agreement (in each case other than any Finance Party or Junior Lender
or the lender under the Liquidity Facility Agreement) fails to comply
with its obligations under the Intercreditor Agreement and/or the
Subordination Agreement and/or the Senior Notes Loan Subordination
Agreement.
24.20 PLAN AND PENSIONS
An ERISA Plan shall fail to maintain the minimum funding standard
required by Section 412 of the Code for any plan year or a waiver of
such standard is sought or granted under Section 412(d), or an ERISA
Plan or a Multi-employer Plan is, shall have been, or is likely to be
terminated or the subject of termination proceedings under ERISA, or
the Parent or any member of the Group or an ERISA Affiliate has
incurred or is likely to incur a liability to or on account of an ERISA
Plan or a Multi-employer Plan under Section 4062, 4063, 4064, 4201 or
4204 of ERISA, and there shall result from any such event or events
either a liability or a material risk of incurring a liability to the
Pension Benefit Guaranty Corporation or a Multi-employer ERISA Plan and
which would be reasonably likely to have a Material Adverse Effect.
24.21 MATERIAL ADVERSE CHANGE
Any event or circumstance (or series of events or circumstances) occurs
which an Instructing Group believes in good faith would reasonably
likely be expected to have a Material Adverse Effect.
24.22 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default at any time thereafter while
such Event of Default is continuing, the Facility Agent shall, if so
instructed by an Instructing Group, by notice to the Parent:
24.22.1 declare all or any part of the Advances (including, without
limitation, any Advances under the Ancillary Facilities) to
be immediately due and payable (whereupon the same shall
become so payable together with accrued interest thereon and
any other sums then owed by the Obligors under the Finance
Documents) or declare all or any part of the Advances to be
due and payable on demand of the Facility Agent; and/or
24.22.2 declare that any unutilised portion of the Facilities
(including, without limitation, the Ancillary Facility) shall
be cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero,
PROVIDED THAT, notwithstanding the foregoing, upon the
occurrence of an Event of Default specified in Clause 24.7
(WINDING UP), the Available Revolving Commitment of each of
the Revolving Banks and the Available Term Commitments of
each of the Term Banks shall immediately be reduced to zero
and all Advances, interest thereon and other sums then owed
by the Borrowers hereunder shall become immediately due and
payable; and/or
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24.22.3 require each Revolving Borrower to procure that the
liabilities of each of the Banks and the Fronting Bank under
each Bank Guarantee is promptly reduced to zero and/or
provide Cash Collateral for each Bank Guarantee in an amount
specified by the Facility Agent and in the currency of such
Bank Guarantee and/or provide cash cover in an amount equal
to the contingent liability of each Ancillary Bank under any
Ancillary Facility (whereupon the Borrower shall do so);
and/or
24.22.4 exercise or direct the Security Agent to exercise all rights
and remedies.
24.23 ADVANCES DUE ON DEMAND
If, pursuant to Clause 24.22 (ACCELERATION AND CANCELLATION), the
Facility Agent declares all or any part of the Advances to be due and
payable on demand of the Facility Agent, then, and at any time
thereafter, the Facility Agent shall, if so instructed by an
Instructing Group, by notice to the Parent:
24.23.1 require repayment of all or such part of the Advances on
such date as it may specify in such notice (whereupon the
same shall become due and payable on the date specified
together with accrued interest thereon and any other sums
then owed by the Obligors under the Finance Documents);
and/or
24.23.2 select as the duration of any Interest Period or Term which
begins whilst such declaration remains in effect a period of
six months or less; and/or
24.23.3 declare that the Security Documents (or any of them) shall
have become enforceable.
25. GUARANTEE AND INDEMNITY
25.1 GUARANTEE AND INDEMNITY
Each of the Guarantors irrevocably and unconditionally agrees in favour
of each Finance Party to indemnify each such Finance Party and
guarantee the performance and payments of each Obligor in accordance
with the terms and conditions set out in Schedule 11 (GUARANTEE AND
INDEMNITY).
25.2 PARALLEL DEBT
25.2.1 Each of the Obligors hereby agrees and covenants with the
Security Agent by way of an abstract acknowledgement of debt
(ABSTRAKTES SCHULDANERKENNTNIS) that it shall pay to the
Security Agent sums equal to, and in the currency of, any sums
owing by it to a Finance Party (including the Security Agent)
under any Finance Document (the "PRINCIPAL OBLIGATIONS") as
and when the same fall due for payment under the relevant
Finance Document (such agreement and covenant and the
obligations which are the result thereof in respect of any
Obligor, the "PARALLEL DEBT").
25.2.2 For the avoidance of doubt, the Parallel Debt of each Obligor
shall be deemed to constitute a single obligation of such
Obligor to the Security Agent,
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notwithstanding that such Obligor may owe more than one
Principal Obligation to the Finance Parties.
25.2.3 The Security Agent shall have its own independent right to
demand payment of each Obligor's Parallel Debt by such
Obligor. The rights of the Finance Parties to receive payment
of the Principal Obligations are several from the rights of
the Security Agent to receive the Parallel Debt from the
relevant Obligor.
25.2.4 The payment by an Obligor of its Parallel Debt to the Security
Agent in accordance with this Clause 25.2 shall be a good
discharge of the corresponding Principal Obligations and the
payment by an Obligor of its corresponding Principal
Obligations in accordance with the provisions of the Finance
Documents shall be a good discharge by the Obligor of its
Parallel Debt.
25.2.5 Despite the foregoing, any such payment shall be made to the
Facility Agent, unless the Facility Agent directs such payment
to be made to the Security Agent.
26. COMMITMENT COMMISSION AND FEES
26.1 COMMITMENT COMMISSION ON THE TERM FACILITY
In relation to each Term Facility, the Parent shall pay to the Facility
Agent for account of each Term Bank a commitment commission on the
amount of such Term Bank's Available Term Commitment in relation to
such Term Facility from day to day during the Term Availability Period
for such Term Facility, such commitment commission to be calculated at
the rate of 0.75 per cent. per annum in relation to such Term Facility
and payable in arrears on the last day of each successive period of
three months which ends during the Term Availability Period for such
Term Facility and on the last day of the Term Availability Period for
such Term Facility.
26.2 COMMITMENT COMMISSION ON THE REVOLVING FACILITY
The Parent shall pay to the Facility Agent for account of each
Revolving Bank a commitment commission on the amount of such Revolving
Bank's Available Revolving Commitment from day to day during the period
beginning on the date hereof and ending on the Revolving Termination
Date, such commitment commission to be calculated at the rate of 0.75
per cent. per annum and payable in arrear on the last day of each
successive period of three months which ends during such period and on
the Revolving Termination Date.
26.3 ARRANGEMENT FEE AND STRUCTURING FEE
The Parent shall pay to the Arranger the arrangement and structuring
fees specified in the letters of even date herewith from the Arranger
to the Parent at the times, and in the amounts, specified in such
letters. The Parent acknowledges that it has received a copy of and
consents to the terms of such letter.
26.4 FACILITY AGENCY FEE
The Parent shall pay to the Facility Agent for its own account the
facility agency fees specified in the letter of even date herewith from
the Facility Agent to the Parent at the
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times, and in the amounts, specified in such letter. The Parent
acknowledges that it has received a copy of and consents to the terms
of such letter.
26.5 SECURITY AGENCY FEE
The Parent shall pay to the Security Agent for its own account the
security agency fees specified in the letter of even date herewith from
the Security Agent to the Parent at the times, and in the amounts,
specified in such letter. The Parent acknowledges that it has received
a copy of and consents to the terms of such letter.
26.6 FRONTING FEE
The Parent shall pay to the Fronting Bank for its own account a
fronting fee on the amount of the Fronting Bank's contingent liability
under any Bank Guarantee excluding an amount equal to the Fronting
Bank's participation in such Bank Guarantee from day to day during the
period beginning on the date of the issuance of such Bank Guarantee and
ending on the date on which such Bank Guarantee expires, such fronting
fee to be calculated at the rate of 0.125 per cent. per annum and
payable in arrears on the last day of each successive period of three
months and on the day on which the relevant Bank Guarantee expires.
27. COSTS AND EXPENSES
27.1 TRANSACTION EXPENSES
The Parent shall, from time to time on demand of the Facility Agent,
reimburse each of the Facility Agent, the Security Agent and the
Arranger and any of their affiliates (on a full indemnity basis whether
or not any of the Facilities are drawndown or utilised) for all
reasonable costs and expenses properly incurred (including reasonable
legal fees) together with any VAT thereon incurred by it in connection
with (a) any due diligence carried out by it or on its behalf in
connection with the Finance Documents and the transactions contemplated
thereby and (b) the negotiation, preparation, execution and syndication
of the Finance Documents, any other document referred to in the Finance
Documents and the Facilities and the completion of the transactions
therein contemplated.
27.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Parent shall, from time to time on demand of the Facility Agent or
Security Agent, reimburse the Finance Parties for all costs and
expenses (including legal fees) on a full indemnity basis together with
any VAT thereon incurred in or in connection with the preservation
and/or enforcement of any of the rights of the Finance Parties under
the Finance Documents and any document referred to in the Finance
Documents.
27.3 STAMP TAXES
The Parent shall pay all stamp, registration and other taxes to which
the Finance Documents, any other document referred to in the Finance
Documents or any judgment given in connection therewith is or at any
time may be subject and shall, from time to time on demand of the
Facility Agent, indemnify the Finance Parties against any liabilities,
costs, claims and expenses resulting from any failure to pay or any
delay in paying any such tax.
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27.4 AMENDMENT COSTS
If an Obligor requests any amendment, waiver or consent then the Parent
shall, within five Business Days of demand by the Facility Agent,
reimburse the Finance Parties for all reasonable costs and expenses
(including reasonable legal fees) together with any VAT thereon
incurred by such person in responding to or complying with such
request.
27.5 BANKS' LIABILITIES FOR COSTS
If the Parent fails to perform any of its obligations under this Clause
27, each Bank shall, in its Proportion, indemnify each of the Facility
Agent, the Security Agent and the Arranger against any loss incurred by
any of them (or their affiliates, in the case of costs and expenses
referred to in Clause 27.1 (TRANSACTION EXPENSES)) as a result of such
failure.
28. DEFAULT INTEREST AND INDEMNITY
28.1 DEFAULT INTEREST PERIODS
If any sum due and payable by any of the Obligors under any of the
Finance Documents is not paid on the due date therefor in accordance
with the provisions of Clause 30 (PAYMENTS) or if any sum due and
payable by any of the Obligors under any judgment of any court in
connection with any of the Finance Documents is not paid on the date of
such judgment, lump sum damages shall be payable in an amount equal to
interest on such unpaid sum at the rate per annum which is the sum from
time to time of 1.5 per cent., the Margin and the Interbank Rate for
the period for which such sum is due and payable but not paid and shall
be immediately due and payable.
28.2 BREAKAGE COSTS
If any Bank or the Facility Agent on its behalf receives or recovers
all or any part of such Bank's share of an Advance otherwise than on
the last day of an Interest Period or Term relating to that Advance,
the relevant Borrower shall pay to the Facility Agent on demand for
account of such Bank an amount equal to the amount (if any) by which
(a) the additional interest which would have been payable on the amount
so received or recovered had it been received or recovered on the last
day of that Interest Period or Term exceeds (b) the amount of interest
which in the opinion of the Facility Agent would have been payable to
the Facility Agent on the last day of that Interest Period or Term in
respect of a euro deposit equal to the amount so received or recovered
placed by it with a prime bank in Frankfurt for a period starting on
the third Business Day following the date of such receipt or recovery
and ending on the last day of that Interest Period or Term.
28.3 PARENT'S INDEMNITY
The Parent undertakes to indemnify:
28.3.1 each of the Finance Parties against any cost, claim, loss,
expense (including legal fees) or liability together with any
VAT thereon, which any of them may sustain or incur as a
consequence of the occurrence of any Event of Default or any
default by any of the Borrowers in the performance of any of
the obligations expressed to be assumed by it in any of the
Finance Documents;
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28.3.2 each Bank against any loss it may suffer or incur as a result
of its funding or making arrangement to fund its portion of an
Advance requested by any of the Borrowers hereunder but not
made by reason of the operation of any one or more of the
provisions hereof; and
28.3.3 each Finance Party against any cost or loss it may suffer as a
result of any claim or proceeding against it relating to its
involvement in the transactions contemplated hereby or any use
of the proceeds of the Facilities.
28.4 CURRENCY INDEMNITY
If any sum due from any of the Obligors under any of the Finance
Documents or any order or judgment given or made in relation thereto
has to be converted from the currency in which the same is payable
thereunder or under such order or judgment into another currency for
the purpose of (a) making or filing a claim or proof against such
Obligor, (b) obtaining an order or judgment in any court or other
tribunal or (c) enforcing any order or judgment given or made in
relation thereto, the relevant Obligor shall indemnify each of the
persons to whom such sum is due from or against any loss suffered or
incurred as a result.
29. CURRENCY OF ACCOUNT AND PAYMENT
29.1 CURRENCY OF ACCOUNT
The euro is the currency of account and payment for each and every sum
at any time due from an Obligor hereunder, PROVIDED THAT:
29.1.1 each repayment of an Advance or Unpaid Sum or a part thereof
shall be made in the currency in which such Advance or Unpaid
Sum is denominated at the time of that repayment;
29.1.2 each payment in respect of a Bank Guarantee (including any
Cash Collateral in respect of a Bank Guarantee) shall be made
in the currency in which such Bank Guarantee is denominated;
29.1.3 each payment of interest shall be made in the currency in
which the sum in respect of which such interest is payable is
denominated;
29.1.4 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
29.1.5 each payment pursuant to Clause 16.1 (TAXES PAYABLE) or Clause
17.1 (INCREASED COSTS) shall be made in the currency specified
by the party claiming thereunder.
If after the date of this Agreement a member state becomes a Subsequent
Participant, all obligations under this Agreement (including any
obligation in respect of any Bank's Available Commitment) to make a
payment in its National Currency Unit shall be redenominated into the
euro unit on the day on which it becomes a Subsequent Participant (but
otherwise in accordance with EMU Legislation).
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30. PAYMENTS
30.1 PAYMENTS TO THE FACILITY AGENT
On each date on which this Agreement requires an amount to be paid by
an Obligor or a Bank, such Obligor or, as the case may be, such Bank
shall make the same available to the Facility Agent for value on the
due date at such time and in such funds and to such account with such
bank as the Facility Agent shall specify from time to time.
30.2 PAYMENTS BY THE FACILITY AGENT
Save as otherwise provided herein, each payment received by the
Facility Agent for the account of another person pursuant to Clause
30.1 (PAYMENTS TO THE FACILITY AGENT) shall:
30.2.1 in the case of a payment received for the account of a
Borrower, be made available by the Facility Agent to such
Borrower by application:
(a) FIRST, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due
from such Borrower hereunder to the person from whom the
amount was so received or in or towards the purchase of
any amount of any currency to be so applied; and
(b) SECONDLY, in or towards payment (on the date, and in the
currency and funds, of receipt) to such account with
such bank in the principal financial centre of the
country of the currency of such payment as such Borrower
(or the Parent) shall have previously notified to the
Facility Agent for this purpose PROVIDED THAT, in
respect of any drawdown of a Term A1 Advance or a Term B
Advance or a Term C Advance to be applied in payment for
the Target Company Shares to be purchased under the
Offers, such account shall be the Holding Account; and
30.2.2 in the case of any other payment, be made available by the
Facility Agent to the person for whose account such payment
was received (in the case of a Bank, for the account of the
Facility Office) for value the same day by transfer to such
account of such person with such bank in the principal
financial centre of the country of the currency of such
payment as such person shall have previously notified to the
Facility Agent.
A payment shall be deemed to have been made by the Facility Agent on
the date on which it is required to be made under this Agreement if the
Facility Agent has, on or before that date, taken steps to make that
payment in accordance with the regulations or operating procedures of
the clearing system used by the Facility Agent in order to make the
payment.
30.3 NO SET-OFF
Save for any counterclaims which have been recognised by final court
decision (not subject to appeal), all payments required to be made by
an Obligor under any Finance Document shall be calculated without
reference to any set-off or counterclaim and shall
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be made free and clear of and without any deduction for or on account
of any set-off or counterclaim.
30.4 CLAWBACK
Where a sum is to be paid under a Finance Document to the Facility
Agent for account of another person, the Facility Agent shall not be
obliged to make the same available to that other person or to enter
into or perform any exchange contract in connection therewith until it
has been able to establish to its satisfaction that it has actually
received such sum, but if it does so and it proves to be the case that
it had not actually received such sum, then the person to whom such sum
or the proceeds of such exchange contract was so made available shall
on request refund the same to the Facility Agent together with an
amount sufficient to indemnify the Facility Agent against any cost or
loss it may have suffered or incurred by reason of its having paid out
such sum or the proceeds of such exchange contract prior to its having
received such sum.
30.5 PARTIAL PAYMENTS
If and whenever a payment is made by an Obligor hereunder and the
Facility Agent receives an amount less than the due amount of such
payment the Facility Agent may apply the amount received towards the
obligations of the Obligors under this Agreement in the following
order:
30.5.1 FIRST, in or towards payment of any unpaid costs and expenses
of each of the Facility Agent, the Security Agent and the
Arranger;
30.5.2 SECONDLY, in or towards payment pro rata of any accrued fees
due but unpaid under Clause 26 (COMMITMENT COMMISSION AND
FEES);
30.5.3 THIRDLY, in or towards payment PRO RATA of any accrued
interest, Bank Guarantee Commission or fronting fee payable to
any Bank or the Fronting Bank hereunder due but unpaid;
30.5.4 FOURTHLY, in or towards payment PRO RATA of any principal due
but unpaid; and
30.5.5 FIFTHLY, in or towards payment PRO RATA of any other sum due
but unpaid.
Following the service of a notice in accordance with Clause 24.22
(ACCELERATION AND CANCELLATION) any monies standing to the credit of
any account of any Obligor held by any Ancillary Bank as part of the
Ancillary Facilities shall be applied by such Ancillary Bank against
any such amounts then due to it in respect of the Ancillary Facilities
and any amounts, after such application, standing to the credit of any
account of any Obligor held by any Ancillary Bank shall be immediately
paid to the Facility Agent for application in accordance with Clause
30.5 (PARTIAL PAYMENTS).
30.6 VARIATION OF PARTIAL PAYMENTS
The order of partial payments set out in Clause 30.5 (PARTIAL PAYMENTS)
shall override any appropriation made by an Obligor to which the
partial payment relates but the order set out in sub-clauses 30.5.2,
30.5.3, 30.5.4 and 30.5.5 (PARTIAL PAYMENTS) may be varied if agreed by
all the Banks.
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31. SET-OFF
31.1 CONTRACTUAL SET-OFF
Each Obligor authorises each Bank to apply any credit balance to which
such Obligor is entitled on any account of such Obligor with such Bank
in satisfaction of any sum due and payable from such Obligor to such
Bank under any Finance Document but unpaid. For this purpose, each Bank
is authorised to purchase with the moneys standing to the credit of any
such account such other currencies as may be necessary to effect such
application.
31.2 SET-OFF NOT MANDATORY
No Bank shall be obliged to exercise any right given to it by Clause
31.1 (CONTRACTUAL Set-off).
32. SHARING
32.1 PAYMENTS TO BANKS
If a Bank (a "RECOVERING BANK") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is
received or recovered other than in accordance with Clause 30
(PAYMENTS), then such Recovering Bank shall:
32.1.1 notify the Facility Agent of such receipt or recovery;
32.1.2 at the request of the Facility Agent, promptly pay to the
Facility Agent an amount (the "SHARING PAYMENT") equal to such
receipt or recovery less any amount which the Facility Agent
determines may be retained by such Recovering Bank as its
share of any payment to be made in accordance with Clause 30.5
(PARTIAL PAYMENTS).
32.2 REDISTRIBUTION OF PAYMENTS
The Facility Agent shall treat the Sharing Payment as if it had been
paid by the relevant Obligor and distribute it between the Finance
Parties (other than the Recovering Bank) in accordance with Clause 30.5
(PARTIAL PAYMENTS).
32.3 RECOVERING BANK'S RIGHTS
To the extent that amounts received or recovered by a Recovering Bank
resulted in the satisfaction of the Recovering Bank's claim hereunder,
but are allocated in accordance with this Clause 32 to another Finance
Party, the latter shall assign to the Recovering Bank the claims (or
the part thereof) to which the amount is allocated.
32.4 REPAYABLE RECOVERIES
If any part of the Sharing Payment received or recovered by a
Recovering Bank becomes repayable and is repaid by such Recovering
Bank, then:
32.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 32.2 (REDISTRIBUTION OF PAYMENTS) shall,
upon request of the Facility Agent, pay to the Facility Agent
for account of such Recovering Bank an amount equal to its
share of such Sharing Payment together with such amount (if
any) as is necessary to reimburse the Recovering Bank for the
appropriate
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proportion of any interest it shall have been obliged to pay
when repaying such Sharing Payment to the relevant Obligor;
and
32.4.2 such Recovering Bank shall re-assign to the relevant Finance
Party any amount assigned to it by such Finance Party pursuant
to Clause 32.3 (RECOVERING BANK'S RIGHTS).
32.5 EXCEPTION
This Clause 32 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor.
32.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank shall commence any action in any court to enforce its
rights hereunder and, as a result thereof or in connection therewith,
receives any amount, then such Bank shall not be required to share any
portion of such amount with any Bank which has the legal right to, but
does not, join in such action or commence and diligently prosecute a
separate action to enforce its rights in another court.
32.7 LOSS SHARING
32.7.1 In this Clause 32.7
"RELEVANT ANCILLARY OUTSTANDINGS" means in relation to an
Ancillary Bank its Ancillary Outstandings after deducting any
credit balance of any amount of any member of the Group with
such Ancillary Bank which is available to be set off by such
Ancillary Bank against liabilities and to such Ancillary Bank
by that member of the Group.
"RELEVANT REVOLVING OUTSTANDINGS" means in relation to a Bank
the aggregate of (i) its share of the Revolving Outstandings
(other than Ancillary Outstandings) and (ii) its Relevant
Ancillary Outstandings.
"TOTAL RELEVANT REVOLVING OUTSTANDINGS" means the aggregate of
all Relevant Revolving Outstandings.
32.7.2 The Facility Agent shall, within 4 Business Days of the
service of a notice under Clause 24.22 (ACCELERATION AND
CANCELLATION):
(a) determine the adjusting payments required to be made
between the Banks to ensure that the Relevant
Revolving Outstandings of each Bank bears the same
proportion to the Total Relevant Revolving
Outstandings as its Revolving Commitment bears to the
aggregate of the Banks' Revolving Commitments;
(b) provide to the Banks details of how such adjusting
payments were calculated; and
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(c) request that the Banks make such adjusting payments
between themselves.
32.7.3 Each Bank shall promptly make the adjusting payments requested
of it by the Facility Agent under this Clause 32.7.
32.7.4 Any amount paid by a Bank under this Clause 32.7 shall be
deemed to be an immediately due and payable debt of the
Borrowers to that Bank.
32.7.5 Any amount received by a Bank under this Clause 32.7 shall be
deemed to be a payment by the Borrowers of sums owed under
this Agreement.
32.7.6 If any future or contingent liability included in the
calculations of Relevant Revolving Outstandings for any Bank
for the purposes of Clause 32.7.2 finally matures, or is
settled, for less than the future or contingent amount
provided for in that calculation, that Bank shall notify the
Facility Agent. The Facility Agent shall determine the future
adjusting payments required to be made by that Bank to put the
Banks into the position they would have been in had the
original adjusting payments been made on the basis of the
actual as opposed to the future or contingent liability (but
taking no account of the time cost of money) and shall request
that Bank to make such further adjusting payments (whether to
any Bank or, as the case may be, the Borrowers).
33. THE FACILITY AGENT, THE ARRANGER AND THE BANKS
33.1 APPOINTMENT OF THE FACILITY AGENT
Each of the Arranger and the Banks hereby appoints the Facility Agent
to act as its agent in connection with the Finance Documents and
authorises the Facility Agent to exercise such rights, powers,
authorities and discretions as are specifically delegated to the
Facility Agent by the terms thereof (including Schedule 10 (FACILITY
AGENT'S DISCRETIONS AND OBLIGATIONS) of this Agreement) together with
all such rights, powers, authorities and discretions as are reasonably
incidental thereto PROVIDED THAT the Facility Agent shall not start or
commence any legal action on behalf of any Bank without such Bank's
prior written consent. The Facility Agent shall be released from the
restrictions set out in Section 181 of the German Civil Code
(BURGERLICHES GESETZBUCH). The Facility Agent can grant substitute
powers of attorney and release any sub-agent from such restrictions and
revoke such substitute powers of attorney. Upon the request of the
Facility Agent each of the Arranger and the Banks shall grant a special
power of attorney to the Facility Agent to enter into Finance Documents
on its behalf.
33.2 INTEREST ON HOLDING ACCOUNT
During the period commencing on the date hereof and ending on the first
anniversary of the date hereof (26th April 2002) the Holding Account
shall bear interest at the Facility Agent's applicable Euro base rate
plus 2.10 per cent. per annum. Such interest shall be calculated at the
end of each Financial Quarter on the basis of actual days elapsed to
360 days. Each Bank shall participate in any payment of interest on the
Holding Account in the ratio of its Commitment to the Total
Commitments.
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34. THE BANKS AND THE FRONTING BANK
34.1 BANKS' INDEMNITY
If any Borrower fails to comply with its obligations under Clause 13.1
(REVOLVING BORROWERS' INDEMNITY TO FRONTING BANK) the Facility Agent
shall make demand on each Bank for its share of such amount and each
Bank shall indemnify the Fronting Bank for such Bank's Bank Guarantee
Proportion of each Bank Guarantee Amount.
34.2 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Bank in this Clause 34.2 nor the
rights, powers and remedies conferred upon the Fronting Bank by this
Agreement or by law shall be discharged, impaired or otherwise affected
by:
34.2.1 the winding-up, dissolution, administration or re-organisation
of the Fronting Bank, any Borrower or any other person or any
change in its status, function, control or ownership;
34.2.2 any of the obligations of the Fronting Bank, any Borrower or
any other person hereunder, under a Bank Guarantee or under
any other security taken in respect of its obligations
hereunder or under a Bank Guarantee being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
34.2.3 time or other indulgence being granted or agreed to be granted
to the Fronting Bank, any Borrower or any other person in
respect of its obligations hereunder, under a Bank Guarantee
or under any such other security;
34.2.4 any amendment to, or any variation, waiver or release of, any
obligation of the Fronting Bank, any Borrower or any other
person hereunder, under a Bank Guarantee or under any such
other security; and
34.2.5 any other act, event or omission which, but for this Clause
34.2, might operate to discharge, impair or otherwise affect
any of the obligations of each Bank herein contained or any of
the rights, powers or remedies conferred upon the Fronting
Bank by this Agreement or by law.
The obligations of each Bank herein contained shall be in addition to
and independent of every other security which the Fronting Bank may at
any time hold in respect of any Bank Guarantee.
34.3 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Bank and the Fronting Bank shall
be conditional upon no security or payment to the Fronting Bank by a
Bank or any other person on behalf of a Bank being avoided or reduced
by virtue of any laws relating to bankruptcy, insolvency, liquidation
or similar laws of general application and, if any such security or
payment is so avoided or reduced, the Fronting Bank shall be entitled
to recover the value or amount of such security or payment from such
Bank subsequently as if such settlement or discharge had not occurred.
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34.4 EXERCISE OF RIGHTS
The Fronting Bank shall not be obliged before exercising any of the
rights, powers or remedies conferred upon it in respect of any Bank by
this Agreement or by law:
34.4.1 to take any action or obtain judgment in any court against any
Borrower;
34.4.2 to make or file any claim or proof in a winding-up or
dissolution of any Borrower; or
34.4.3 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any Borrower hereunder.
35. ASSIGNMENTS AND TRANSFERS
35.1 BINDING AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors and Transferees.
35.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under the Finance Documents other than
pursuant to Clause 36.3 (APPROVED SUBSTITUTE BORROWER), Clause 36.6
(EXCHANGE BORROWERS) and Clause 37.3 (APPROVED SUBSTITUTE GUARANTOR).
35.3 ASSIGNMENTS AND TRANSFERS BY BANKS
Any Bank may, at any time, assign all or any of its rights and benefits
under the Finance Documents or transfer in accordance with Clause 35.5
(TRANSFERS BY BANKS) (and the Facility Agent shall accept such
assignment by countersignature) all or any of its rights, benefits and
obligations under the Finance Documents to any bank or financial
institution, trust or fund or similar institution, PROVIDED THAT
35.3.1 no such assignment or transfer may be made without the prior
consultation of the Parent, except in the case of any such
assignment or transfer:
(a) to any subsidiary or holding company, or to any
subsidiary of any holding company, of such Bank;
(b) to any other Bank or any subsidiary or holding
company, or to any subsidiary of any holding company,
of any other Bank; or
(c) following the occurrence of an Event of Default or
Potential Event of Default which is continuing; and
35.3.2 (in respect of a Bank Guarantee) no such assignment or
transfer may be made without the prior written consent of the
Fronting Bank;
35.3.3 each such transfer or assignment shall be in a minimum amount
of EUR 10,000,000 (or, if less, the Bank's aggregate
Commitment) unless otherwise
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agreed by the Parent and the Agent (without the prior consent
of an Instructing Group).
35.4 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 35.3 (ASSIGNMENTS AND
TRANSFERS BY BANKS), then, unless and until the assignee has delivered
a notice to the Facility Agent confirming in favour of the Facility
Agent, the Security Agent, the Arranger, the Fronting Bank and the
other Banks that it shall be under the same obligations towards each of
them as it would have been under if it had been an original party to
the Finance Documents as a Bank (whereupon such assignee shall become a
party to the Finance Documents as a "Bank"), the Facility Agent, the
Security Agent, the Arranger, the Fronting Bank and the other Banks and
shall not be obliged to recognise such assignee as having the rights
against each of them which it would have had if it had been such a
party to the Finance Documents.
35.5 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits
and/or obligations under the Finance Documents as contemplated in
Clause 35.3 (ASSIGNMENTS AND TRANSFERS BY BANKS), then such transfer
may be effected by the delivery to the Facility Agent of a duly
completed Transfer Certificate executed by such Bank and the relevant
Transferee, to be countersigned by the Facility Agent in which event,
on the later of the Transfer Date specified in such Transfer
Certificate and the fifth Business Day after (or such earlier Business
Day endorsed by the Facility Agent on such Transfer Certificate falling
on or after) the date of delivery of such Transfer Certificate to the
Facility Agent:
35.5.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by transfer and assumption its
rights, benefits and obligations under the Finance Documents,
each of the Obligors and such Bank shall be released from
further obligations towards one another under the Finance
Documents and their respective rights against one another
shall be cancelled (such rights and obligations being referred
to in this Clause 35.5 as "DISCHARGED RIGHTS AND
OBLIGATIONS");
35.5.2 each of the Obligors and the Transferee party thereto shall
assume obligations towards one another and/or acquire rights
against one another which differ from such discharged rights
and obligations only insofar as such Obligor and such
Transferee have assumed and/or acquired the same in place of
such Obligor and such Bank;
35.5.3 the Facility Agent, the Security Agent, the Arranger, such
Transferee, the Fronting Bank and the other Banks shall
acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and
assumed had such Transferee been an original party to the
Finance Documents as a Bank with the rights, benefits and/or
obligations acquired or assumed by it as a result of such
transfer and to that extent the Facility Agent, the Security
Agent, the Arranger, the Fronting Bank and the relevant Bank
shall
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each be released from further obligations to each other under
the Finance Documents; and
35.5.4 such Transferee shall become a party hereto as a "Bank".
For the avoidance of doubt any transfer of any Bank's rights and/or
benefits under the Finance Documents (together with or as the case may
be independent of any transfer of any obligations) is effected by way
of assignment (ABTRETUNG) in accordance with sections 389 and
subsequent of the German Civil Code (BGB) and not by way of novation.
35.6 TAX ON ASSIGNMENT AND TRANSFER
If:
35.6.1 a Bank assigns or transfers any of its rights or obligations
under the Finance Documents; and
35.6.2 as a result of circumstances existing at the date the
assignment or transfer occurs, an Obligor would be obliged to
make a payment to the assignee or Transferee under Clause 16
(TAXES),
then the assignee or Transferee shall only be entitled to receive
payment under Clause 16 (TAXES) to the same extent as the assigning or
transferring Bank would have been if the assignment or transfer had not
occurred.
35.7 ASSIGNMENT AND TRANSFER FEES
On the date upon which an assignment takes effect pursuant to Clause
35.4 (ASSIGNMENTS BY BANKS) or a transfer takes effect pursuant to
Clause 35.5 (TRANSFERS BY BANKS) the relevant assignee or Transferee
shall pay to the Facility Agent for its own account a fee of EUR 2000.
35.8 DISCLOSURE OF INFORMATION
Any Bank may disclose to any actual or potential assignee or Transferee
or to any person who may otherwise enter into contractual relations
with such bank in relation to any of the Finance Documents (PROVIDED
THAT is has obtained a written confidentiality undertaking from such
person in favour of the Parent) such information about the Obligors and
the Group or such details of the Finance Documents as such Bank shall
consider appropriate or which it may be necessary to disclose to comply
with any applicable laws or regulations. No Bank shall in any way be
liable or responsible for such information not being kept confidential
by such proposed assignee or Transferee or other person if such
confidentiality undertaking was obtained prior to such disclosure.
35.9 DISCLOSURE OF ACQUISITION
Each Finance party shall 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 its
advisers which refer to any of the Obligors or the Initial Investors or
this Agreement
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unless such reference and the context in which it appears have
previously been approved by the Parent (such approval not to be
unreasonably withheld or delayed).
36. ADDITIONAL BORROWERS
36.1 REQUEST FOR ADDITIONAL BORROWER
The Parent may request that any of its subsidiaries become an
Additional Borrower by delivering to the Facility Agent a Borrower
Accession Agreement substantially in the form of Schedule 7
(BORROWER/GUARANTOR ACCESSION AGREEMENT) duly executed by the Parent
and such subsidiary, together with the documents and other evidence
listed in Schedule 8 (ADDITIONAL CONDITIONS PRECEDENT FOR
ADDITIONAL/SUBSTITUTE OBLIGORS) in relation to such subsidiary. To the
extent legally possible, such Additional Borrower will provide the
Security requested by the Facility Agent which Security shall be given
in accordance with sub-clause 23.1.12 (ADDITIONAL SECURITY).
36.2 BORROWER CONDITIONS PRECEDENT
A company, in respect of which the Parent has delivered a Borrower
Accession Agreement to the Facility Agent, shall become an Additional
Borrower and assume all the rights, benefits and obligations of a
Borrower on the date on which the Facility Agent notifies the Parent
that:
(a) the Banks accept the Parent's request in respect of such
subsidiary or if such subsidiary is Keramag AG, an Instructing
Group accepts the Parent's request in respect of such
subsidiary; and
(b) the Facility Agent has received, in form and substance
satisfactory to it, all documents and other evidence listed in
Schedule 8 (ADDITIONAL CONDITIONS PRECEDENT FOR
ADDITIONAL/SUBSTITUTE OBLIGORS) in relation to such
subsidiary,
unless on such date an Event of Default or Potential Event of Default
is continuing or would occur as a result of such subsidiary becoming an
Additional Borrower PROVIDED THAT if such Additional Borrower is to be
an Exchange Borrower, a Relevant Exchange Borrower or an Approved
Additional Borrower, the Banks acceptance of the Parent's request may
be subject to such conditions as the Banks think fit (including,
without limitation, as to limits on the amount that may be borrowed by
or the amount of Outstandings that may be transferred to such entity).
36.3 APPROVED SUBSTITUTE BORROWER
If the Parent has not been able to acquire more than 90 per cent. of
the Target Company Shares within a twelve month period commencing with
the Closing Date and if the Parent demonstrates to the Banks and the
Facility Agent that in order to optimise the tax position of the Group
it is advisable that the Parent be substituted with the Approved
Substitute Borrower then the Parent may assign all its rights and
obligations under this Agreement to the Approved Substitute Borrower
which shall assume such rights and obligations, such assignment of
contract (VERTRAGSUBERNAHME) to be effected under an assignment of
contract agreement (VERTRAGSUBERNAHMEVERTNAG) on terms satisfactory to
the Facility Agent (acting on the instructions of an Instructing
Group):
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36.3.1 if the Facility Agent has received, in form and substance
satisfactory to it, all documents and other evidence listed in
Schedule 8 (ADDITIONAL CONDITIONS PRECEDENT FOR
ADDITIONAL/SUBSTITUTE OBLIGORS) with regard to the Approved
Substitute Borrower; and
36.3.2 if concurrently with the assignment of contract
(VERTRAGSUBERNAHME) becoming effective the Approved Substitute
Borrower takes over all other assets and liabilities of the
Parent including (without limitation to) the Target Company
Shares.
Each of the Finance Parties hereby appoints the Facility Agent to act
as its agent for the purpose of executing such assignment of contract
agreement and any related document. The Facility Agent shall be
released from the restrictions set out in Section 181 of the German
Civil Code (BURGERLICHES GESETZBUCH).
36.4 RESIGNATION OF A BORROWER
If at any time a Borrower (other than the Original Borrower) is under
no actual or contingent obligation under or pursuant to any Finance
Document and such resignation would not affect the legality, validity
or enforceability of any security contemplated by the Security
Documents in respect of such Borrower or its assets, the Parent may
request that such Borrower shall cease to be a Borrower by delivering
to the Facility Agent a Resignation Notice. Such Resignation Notice
shall be accepted by the Facility Agent (acting on the instructions of
an Instructing Group) on the date on which it notifies the Parent that
it is satisfied that such Borrower is under no actual or contingent
obligation under or pursuant to any Finance Document and such Borrower
shall immediately cease to be a Borrower and shall have no further
rights, benefits or obligations hereunder save for those which arose
prior to such date.
36.5 POWER OF ATTORNEY
Each Additional Borrower appoints the Parent as its agent for all
purposes of, or in connection with, the Finance Documents, and the
Finance Parties may rely upon any document signed by or on behalf of
the Parent as is it had been signed by such Additional Borrower. The
Parent shall be released from the restrictions set out in Section 181
of the German Civil Code (BURGERLICHES GESETZBUCH). The Parent can
grant substitute powers of attorney and release any sub-agent from such
restrictions and revoke such substitute powers of attorney.
36.6 EXCHANGE BORROWERS
The Parent may, at any time on or prior to the date falling 83 months
after the date of this Agreement request that a Borrower (the "EXISTING
BORROWER") transfer all or any of its rights and obligations in respect
of any Term Advance: (i) under tranche (c) of the Term A2 Facility to
any Exchange Borrower and (ii) under the Term B1 Facility to any
Relevant Exchange Borrower (such Exchange Borrower or Relevant Exchange
Borrower as applicable, the "NEW BORROWER"), by in each case delivering
to the Facility Agent a Borrower Transfer Agreement duly completed on
behalf of the Parent, the Existing Borrower and the New Borrower
PROVIDED THAT:
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(a) any transfer in respect of a Term Advance (or part of
such Term Advance) pursuant to paragraph (i) or (ii)
above of this Clause 36.6 shall be in a minimum amount
of EUR 2,000,000;
(b) no Existing Borrower may transfer all or any of its
rights and obligations in respect of any Term Advance to
any New Borrower which would result in the aggregate
amount of Push-Down Advances outstanding from such New
Borrower being greater than the amount set out opposite
such Borrower's name in the table below:
NEW BORROWER AMOUNT (MILLION EUR)
Sanitec Oy 170
Allia International S.A.S. 120
Allia S.A.S. 60
Sanitec Kolo Sp. z o.o. 45
and PROVIDED FURTHER THAT without prejudice to that
Borrower's obligations under Clauses 11 (REPAYMENT OF
THE TERM FACILITIES), 12 (REPAYMENT OF THE REVOLVING
FACILITY), 14 (MANDATORY PREPAYMENT) and 15
(CANCELLATION AND VOLUNTARY PREPAYMENT) Allia S.A.S.
shall at all times whilst there are amounts outstanding
under the Term A2 Facility ensure that its share of the
Term A2 Outstandings is not less than EUR 15,000,000
other than where a lesser amount of aggregate
outstandings results from a repayment (other than the
repayment of a Push-Down Advance in accordance with
Clause 2.6 (DEBT PUSH-DOWN)) or prepayment made in
accordance with the terms of this Agreement;
(c) no Existing Borrower may transfer all or any of its
rights and obligations in respect of any Term Advance to
any New Borrower which would result in the aggregate
amount of Term Advances outstanding to such Existing
Borrower under (i) tranche (c) of the Term A2 Facility
and (ii) the Term B1 Facility, in each case which have
not been transferred pursuant to this Clause 36.6 or
repaid and redrawn pursuant to Clause 2.6 (DEBT
PUSH-DOWN), being less than the amount set out opposite
such Borrower's name in the table below:
NEW BORROWER AMOUNT (MILLION EUR)
Sanitec Oy 50
Allia International S.A.S. 30
Allia S.A.S. 15
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PROVIDED FURTHER THAT the amounts set out in the above
table shall be reduced PRO RATA by the amount of any
repayments or prepayments of tranche (c) of the Term A2
Facility and the Term B1 Facility under Clauses 11
(REPAYMENT OF THE TERM FACILITIES), 14 (MANDATORY
PREPAYMENT) and 15 (CANCELLATION AND VOLUNTARY
PREPAYMENT);
(d) there would not immediately after the making of such
transfer be more than fifteen Term Advances and Bank
Guarantees outstanding in aggregate;
(e) the Borrower Transfer Agreement shall specify the date
(the "EXCHANGE DATE") (which shall be: (i) the last day
of an Interest Period relating to the Term Advance to
which the transfer relates and (ii) (other than in the
case of the Borrower Transfer Agreements referred to in
paragraphs 2(a) and 2(c) of Schedule 2 (CONDITIONS
PRECEDENT) of the Fourth Amendment Agreement) a date
falling not less than four and not more than ten
Business Days after the date of delivery of such
Borrower Transfer Agreement and confirmation from the
Facility Agent that the documents and evidence which are
required to be delivered to the Facility Agent in
accordance with this Clause 36.6 are in form and
substance satisfactory to the Facility Agent) on which
the transfer is to take effect;
(f) in the case of a transfer of a Term Advance (or part of
a Term Advance) to be made to any French Exchange
Borrower:
(i) an intercompany loan from the Existing Borrower to
the New Borrower in any amount equal to the amount
of Outstandings to be transferred is discharged by
the transfer of such Outstandings from the
Existing Borrower to such New Borrower; and
(ii) the Parent delivers with the Borrower Transfer
Agreement to the Facility Agent the following
documents in form and substance satisfactory to
the Facility Agent:
(1) a copy of the relevant intercompany loan
agreement (the "INTERCOMPANY LOAN
AGREEMENT") and evidence that proceeds under
the Intercompany Loan Agreement in an amount
equal to the amount of the Outstandings to
be transferred have been received by the
relevant New Borrower; and
(2) evidence that the intercompany loan made
under the Intercompany Loan Agreement has
been or will be discharged in an amount
equal to the amount of the Outstandings
transferred by the transfer of such
Outstandings,
PROVIDED FURTHER THAT the Parent may transfer to
Allia International S.A.S. Term A2 Outstandings in an
amount of up to EUR 20,000,000
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to finance the acquisition by Allia International
S.A.S. from the Parent of shares in Keramag AG (the
"KERAMAG ACQUISITION") in which case the Parent shall
not have to satisfy paragraphs (f)(i) and (ii) above,
subject to: (1) the Parent delivering to the Facility
Agent with the Borrower Transfer Agreement a copy of
the sale and purchase agreement relating to the
Keramag Acquisition, and (2) the Parent delivering to
the Facility Agent evidence (in form and substance
satisfactory to the Facility Agent) that the purchase
price obligation in respect of the Keramag
Acquisition has been or will be discharged in an
amount equal to the amount of the Outstandings
transferred;
(g) no Event of Default or Potential Event of Default has
occurred or would occur as a result of the proposed
transfer;
(h) the Repeated Representations are true (before and
immediately after the making of such transfer) by
reference to the facts and circumstances then existing;
(i) the Parent delivers with the Borrower Transfer Agreement
to the Facility Agent each of the documents listed in
Schedule 8 Part B (ADDITIONAL CONDITIONS PRECEDENT FOR
BORROWER TRANSFER AGREEMENTS) in form and substance
satisfactory to the Facility Agent;
(j) (other than in the case of: (1) the transfer to be made
by the Original Borrower to Allia International S.A.S.
on the Effective Date (as such term is defined in the
Fourth Amendment Agreement) and (2) the transfer to be
made by the Original Borrower to Sanitec Kolo Sp z o.o.
on or before 20 November 2002) no transfer shall be
permitted if an Instructing Group decides not to permit
such transfer; and
(k) no transfer of a Term Advance (or part of a Term
Advance) may be made to the Original Borrower by an
Exchange Borrower if as a result of such transfer the
aggregate amount of Push-Down Advances outstanding from
the Original Borrower which were not originally made to
the Original Borrower would exceed by more than EUR
20,000,000 the aggregate amount of Term Advances which
(i) are Push-Down Advances outstanding to Exchange
Borrowers (other than the Original Borrower) and (ii)
were originally made to the Original Borrower.
36.7 EXCHANGE BORROWER MECHANISM
Subject to the conditions set out in Clause 36.6 (EXCHANGE BORROWERS),
on and with effect from the Exchange Date (or such later date as is
agreed by the Facility Agent and the Parent):
(a) the Existing Borrower shall be released from its
obligations and cease to have any rights as Borrower in
respect of each Term Advance (or portion thereof)
identified in the Schedule to the applicable Borrower
Transfer Agreement as to be transferred and the New
Borrower shall assume
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obligations and acquire rights under the Finance
Documents in relation to each Term Advance (or portion
thereof) identified in the Schedule to the applicable
Borrower Transfer Agreement as to be transferred to it
and each of the Facility Agent, the Security Agent, the
Arranger, the Fronting Bank, the Banks and the New
Borrower shall acquire the same rights and benefits and
assume the same obligations between themselves as they
would have acquired and assumed had the New Borrower
been an original party hereto as a Borrower with the
rights, benefits and/or obligations acquired or assumed
by it as a result of such transfer ((partial) assumption
of contract/(TEILWEISE) VERTRAGSUBERNAHME)); and
(b) if only part of a Term Advance is transferred in
accordance with Clause 36.6 (EXCHANGE BORROWERS), upon
transfer such Term Advance (the "ORIGINAL TERM ADVANCE")
shall be divided into two separate Term Advances one in
an amount equal to the amount of the Original Term
Advance transferred and outstanding from the New
Borrower and the other in an amount equal to the amount
of the Original Term Advance not transferred and
outstanding from the Existing Borrower.
All Obligors which have granted Security prior to the relevant Exchange
Date hereby approve in advance the assumption by the New Borrower as
Borrower of the obligations secured by that Security and, waiving
section 418 of the German Civil Code, the parties agree that such
Security shall not be affected by any transfer or assumption of the
obligations secured by such Security to the New Borrower.
37. ADDITIONAL GUARANTORS
37.1 REQUEST FOR ADDITIONAL GUARANTOR
The Parent may request that any of its Material Group Entities become
an Additional Guarantor by delivering to the Facility Agent a Guarantor
Accession Agreement duly executed by the Parent and such subsidiary,
together with the documents and other evidence listed in Schedule 8
(ADDITIONAL CONDITIONS PRECEDENT FOR ADDITIONAL/SUBSTITUTE OBLIGORS) in
relation to such subsidiary. Such Guarantor will provide the Security
requested by the Facility Agent which Security shall be given in
accordance with sub-clause 23.1.12 (ADDITIONAL SECURITY).
37.2 GUARANTOR CONDITIONS PRECEDENT
A company, in respect of which the Parent has delivered a Guarantor
Accession Agreement to the Facility Agent, shall become an Additional
Guarantor and assume all the rights, benefits and obligations of a
Guarantor as if it had been an original party hereto (subject to
certain limitations customary and required and as agreed to and set out
in the relevant Guarantor Accession Agreement) as a Guarantor on the
date on which the Facility Agent notifies the Parent that it has
received, in form and substance satisfactory to it, all the documents
and other evidence listed in Schedule 8 (ADDITIONAL CONDITIONS
PRECEDENT FOR ADDITIONAL/SUBSTITUTE OBLIGORS).
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37.3 APPROVED SUBSTITUTE GUARANTOR
If the Parent has not been able to acquire more than 90 per cent. of
the Target Company Shares within a twelve month period commencing with
the Closing Date and if the Parent demonstrates to the Banks and
Facility Agent that in order to optimise the tax position of the Group
and/or Fin Newco II it is advisable that Fin Newco II be substituted
with the Approved Substitute Guarantor then Fin Newco II may assign all
its rights and obligations under this Agreement to the Approved
Substitute Guarantor which shall assume such rights and obligations,
such assignment of contract (VERTRAGSUBERNAHME) to be effected under an
assignment of contract agreement (VERTRAGSUBERNAHMEVERTRAG) on terms
satisfactory to the Facility Agent (acting on the instructions of an
Instructing Group):
37.3.1 if the Facility Agent has received, in form and substance
satisfactory to it, all documents and other evidence listed in
Schedule 8 (ADDITIONAL CONDITIONS PRECEDENT FOR
ADDITIONAL/SUBSTITUTE OBLIGORS) with regard to the Approved
Substitute Guarantor; and
37.3.2 if concurrently with the assignment of contract
(VERTRAGSUBERNAHME) becoming effective the Approved Substitute
Guarantor takes over all other assets and liabilities of Fin
Newco II.
Each of the Finance Parties hereby appoints the Facility Agent to act
as its agent for the purpose of executing such assignment of contract
agreement and any related document. The Facility Agent shall be
released from the restrictions set out in Section 181 of the German
Civil Code (BURGERLICHES GESETZBUCH).
37.4 POWER OF ATTORNEY
Each Additional Guarantor appoints the Parent as its agent for all
purposes of, or in connection with, the Finance Documents, and the
Finance Parties may rely upon any document signed by or on behalf of
the Parent as is it had been signed by such Additional Guarantor. The
Parent shall be released from the restrictions set out in Section 181
of the German Civil Code (BURGERLICHES GESETZBUCH). The Parent can
grant substitute powers of attorney and release any sub-agent from such
restrictions and revoke such substitute powers of attorney.
37.5 RELEASE OF FIN NEWCO II
Immediately following the Junior Take-Out and the repayment of all
monies outstanding under each of the Junior Facility Agreement, the
Junior On-Loan and the PIK On-Loan Fin Newco II shall cease to be a
Guarantor hereunder.
38. CALCULATIONS AND EVIDENCE OF DEBT
38.1 BASIS OF ACCRUAL
Interest, Bank Guarantee Commission and commitment commission, shall
accrue from day to day and shall be calculated on the basis of a year
of 360 days and the actual number of days elapsed, save for Interest on
Advances denominated in Sterling, which shall be calculated on a basis
of a year of 365 days and the actual number of days elapsed.
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38.2 QUOTATIONS
If on any occasion a Reference Bank or Bank fails to supply the
Facility Agent with a quotation required of it under the foregoing
provisions of this Agreement, the rate for which such quotation was
required shall be determined from those quotations which are supplied
to the Facility Agent, PROVIDED THAT, in relation to determining
EURIBOR or LIBOR this Clause 38.2 shall not apply if only one Reference
Bank supplies a quotation.
38.3 EVIDENCE OF DEBT
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
38.4 CONTROL ACCOUNTS
The Facility Agent shall maintain on its books a control account or
accounts in which shall be recorded (a) the amount of any Advance or
any Unpaid Sum and the face amount of the Euro Amount of any Bank
Guarantee issued and each Bank's share therein (b) the amount of all
principal, interest and other sums due or to become due from an Obligor
and each Bank's share therein and (c) the amount of any sum received or
recovered by the Facility Agent hereunder and each Bank's share
therein.
38.5 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 38.3 (EVIDENCE OF DEBT) and Clause 38.4 (CONTROL ACCOUNTS)
shall, in the absence of manifest error, be PRIMA FACIE evidence of the
existence and amounts of the specified obligations of the Obligors.
38.6 CERTIFICATES OF BANKS
A certificate of a Bank as to (a) the amount by which a sum payable to
it hereunder is to be increased under Clause 16.1 (TAXES PAYABLE), (b)
the amount for the time being required to indemnify it against any such
cost, payment or liability as is mentioned in Clause 17.1 (INCREASED
COSTS) or (c) the amount of any credit, relief or remission as is
mentioned in Clause 16.1 (TAXES PAYABLE) shall, in the absence of
manifest error, be PRIMA FACIE evidence of the existence and amounts of
the specified obligations of the Obligors.
38.7 FACILITY AGENT'S CERTIFICATES
A certificate of the Facility Agent as to the amount at any time due
from a Borrower or the Parent hereunder or the amount which, but for
any of the obligations of such Borrower or the Parent hereunder being
or becoming void, voidable, unenforceable or ineffective, at any time
would have been due from such Borrower hereunder shall, in the absence
of manifest error, be conclusive for the purposes of Clause 25
(GUARANTEE AND INDEMNITY).
38.8 BANK GUARANTEE
A certificate of the Fronting Bank as to the amount paid out by it in
respect of any Bank Guarantee shall, save for manifest error, be PRIMA
FACIE evidence of the payment of such amounts in any legal action or
proceedings arising in connection therewith.
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39. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
39.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under any Finance Document shall
operate as a waiver thereof, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise thereof or
the exercise of any other right or remedy. The rights and remedies
provided herein and in the Finance Documents are cumulative and not
exclusive of any rights or remedies provided by law.
39.2 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or
enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby, and the
relevant provision shall be replaced with a new provision reflecting
the same commercial intent of the parties, which provision shall be
legal, valid and enforceable under the law of the relevant
jurisdiction.
40. NOTICES
40.1 COMMUNICATIONS IN WRITING
Each communication to be made under the Finance Documents shall be made
in writing and, unless otherwise stated, shall be made by fax or
letter. Each communication shall be in German or English and if in
German accompanied by a translation thereof into English certified as
being true and accurate by an officer of the person making or
delivering the same.
40.2 ADDRESSES
Any communication or document to be made or delivered pursuant to the
Finance Documents shall (unless the recipient of such communication or
document has, by fifteen days' written notice to the Facility Agent,
specified another address or fax number) be made or delivered to the
address or fax number (in the case of each Original Obligor, the
Facility Agent, the Arranger and the Security Agent) identified with
its name below, (in the case of each Bank) notified in writing to the
Facility Agent or, in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as Transferee and in the
case of each acceding Obligor, identified in the relevant Accession
Agreement.
40.3 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to the Finance Documents shall (if by way of fax) be
deemed to have been received when transmission has been completed or
(if by way of letter) deemed to have been delivered when left at that
address or, as the case may be, ten days after being deposited in the
post postage prepaid in an envelope addressed to it at that address,
PROVIDED THAT (a) any communication or document to be made or delivered
to the Facility Agent or Security Agent shall be effective only when
received by its agency division or, as the case may be, trustee
division and then only if the same is expressly
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marked for the attention of the department or officer identified with
the Facility Agent's or, as the case may be, Security Agent's signature
below (or such other department or officer as the Facility Agent or, as
the case may be, the Security Agent shall from time to time specify for
this purpose); (b) any communication or document made or delivered to
the Parent in accordance with this Clause 40.3 shall be deemed to have
been made or delivered to each of the Obligors; and (c) any document to
be delivered pursuant to Clause 2.3 (CONDITIONS PRECEDENT) shall be
delivered in the original form or in the form of a certified copy of
the original form and any Notice of Drawdown shall be confirmed by
letter, although failure to so confirm shall not invalidate the
original request made thereunder.
41. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
42. AMENDMENTS
42.1 AMENDMENTS
The Facility Agent, if it has the prior consent of an Instructing
Group, and the Obligors may from time to time agree in writing to amend
the Finance Documents or to waive, prospectively or retrospectively,
any of the requirements of the Finance Document and any amendments or
waivers so agreed shall be binding on all the Finance Parties and the
Obligors, PROVIDED THAT no such waiver or amendment shall subject any
Finance Party hereto to any new or additional obligations without the
consent of such Finance Party.
42.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
42.2.1 Clause 2.4 (BANKS' OBLIGATIONS SEVERAL), Clause 2.5 (BANKS'
RIGHTS SEVERAL), Clause 25 (GUARANTEE AND INDEMNITY), Clause
32 (SHARING); Clause 35.2 (NO ASSIGNMENTS AND TRANSFERS BY THE
OBLIGORS), or this Clause 42.
42.2.2 a change in the principal amount of or currency of any
Advance, or deferral of any Term Repayment Date, any Repayment
Date or the Revolving Termination Date;
42.2.3 a change in any Bank's Commitment or the Margin, the Bank
Guarantee Commission Rate, the amount or currency of any
payment of interest, fees or any other amount payable
hereunder to any Finance Party or deferral of the date for
payment thereof;
42.2.4 the conditions set out in sub-clause 3.1.4 of Clause 3.1
(UTILISATION CONDITIONS FOR PUSH-DOWN ADVANCES) if an Event of
Default or Potential Event of Default which relates to a
Repeated Representation is continuing;
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42.2.5 the conditions set out in sub-clause 6.1.8 of Clause 6.1
(UTILISATION CONDITIONS FOR REVOLVING ADVANCES) if an Event of
Default or Potential Event of Default which relates to a
Repeated Representation is continuing;
42.2.6 the definition of Event of Default, Instructing Group,
Potential Event of Default or Term Availability Period;
42.2.7 any Security Document where such amendment is material; or
42.2.8 any provision which contemplates the need for the consent or
approval of all the Banks,
shall not be made without the prior consent of all the Banks.
42.3 EXCEPTIONS
Notwithstanding any other provisions hereof, none of the Facility
Agent, the Security Agent or the Fronting Bank shall be obliged to
agree to any such amendment or waiver if the same would:
42.3.1 amend or waive this Clause 42, Clause 27 (COSTS AND EXPENSES),
Clause 33 (THE FACILITY AGENT, THE ARRANGER AND THE BANKS) or
Clause 34 (THE BANKS AND THE FRONTING BANK); or
42.3.2 otherwise amend or waive any of the Facility Agent's, the
Security Agent's or the Fronting Bank's rights hereunder or
subject the Facility Agent, the Security Agent, the Arranger
or the Fronting Bank to any additional obligations hereunder
or under the other Finance Documents.
42.4 AMENDMENTS BY PARENT
The Parent (acting on behalf of each of the Obligors) may agree (and in
the case of a manifest error, the Facility Agent may agree with the
Parent) any amendment to or modification of the provisions of any of
the Finance Documents or any schedule thereto, or grant any waiver or
consent in relation thereto.
43. GOVERNING LAW AND JURISDICTION
43.1 GERMAN LAW
This Agreement shall be governed by, and shall be construed in
accordance with, German law.
▇▇.▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The place of jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement shall be Munich.
43.3 NON-EXCLUSIVE JURISDICTION
This Clause 43 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 43.2 (DISTRICT COURT), it does not
prevent any Finance Party from taking proceedings against any of the
Obligors in any other court of competent
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jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent
permitted by applicable law.
43.4 SERVICE OF PROCESS
Each of the Obligors agrees that the process by which any suit, action
or proceeding is begun in connection with any of the Finance Documents
may be served on it by being delivered in connection with any suit,
action or proceeding in the Federal Republic of Germany, to CMS ▇▇▇▇▇▇
▇▇▇▇▇ Eschenlohr ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ attention ▇▇ ▇▇▇ ▇▇▇▇▇▇ at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. If the appointment of the person
mentioned in this Clause 43.4 ceases to be effective in respect of any
Obligor, such Obligor shall immediately appoint a further person in the
Federal Republic of Germany to accept service of process on its behalf
in the Federal Republic of Germany and failing such appointment within
fifteen days, the Facility Agent shall be entitled to appoint such a
person by notice to such Obligor. Nothing contained herein shall affect
the right to serve process in any other manner permitted by law.
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SCHEDULE 1
THE BANKS
PART I
THE TERM BANKS
BANK TERM A1 TERM A2 TERM B1 AND TERM C
COMMITMENT COMMITMENT TERM B2 COMMITMENT
EUR EUR COMMITMENT EUR
EUR
The Governor and Company of the Bank of 0 16,772,094.59 4,018,139.21 4,018,139.21
Ireland
The Governor and Company of the Bank of 0 17,828,004.44 4,438,907.26 4,438,907.26
Scotland
Bayerische Landesbank Girozentrale 0 16,772,094.59 4,018,139.21 4,018,139.21
BHF-Bank Aktiengesellschaft 0 16,772,094.59 4,018,139.21 4,018,139.21
CDP Euromezz S.a.R.L. 0 0 9,950,000.00 9,950,000.00
Centrobanca Banca di Credito Finanziario 0 19,823,045.86 0 0
e Mobilare S.p.A.
Dresdner Bank AG in Hamburg 0 19,613,466.41 0 0
Jubilee CDO I B.V. 0 0 4,592,159.09 4,592,159.09
Mizuho Corporate Bank, Ltd 0 6,326,518.86 3,938,698.12 3,938,698.12
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, LP 0 9,763,354.29 3,728,787.45 3,728,787.45
Harbourmaster Loan Corporation B.V 0 0 7,462,500.00 7,462,500.00
Landesbank ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇ 13,755,490.45 4,018,139.21 4,018,139.21
Landesbank Schleswig-Holstein 0 16,772,094.59 4,018,139.21 4,018,139.21
Girozentrale
Nordea Bank Finland Plc 0 21,812,736.79 8,236,910.38 8,236,910.38
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation 0 6,637,365.84 5,339,024.40 5,339,024.40
Deutsche Bank AG, London 0 12,350,558.27 995,000.00 995,000.00
OKO Osuuspankkien Keskusoankki Oyj 0 16,872,998.72 4,018,139.21 4,018,139.21
The Prudential Assurance Company Limited 0 0 9,328,125.00 9,328,125.00
The Royal Bank of Scotland Plc, 0 23,518,146.22 8,236,910.38 8,236,910.38
Niederlassung ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇- ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇ 21,812,736.77 8,236,910.39 8,236,910.39
NORDIC INVESTMENT BANK 0 19,788,698.72 4,018,139.21 4,018,139.21
Credit Suisse First Boston 0 0 3,109,375.00 3,109,375.00
Duchess I CDO S.A. 0 0 3,729,718.08 3,729,718.08
TOTAL 276,991,500.00 109,450,000.00 109,450,000.00
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PART II
THE REVOLVING BANKS
BANK REVOLVING COMMITMENT
(EXCLUDING ANCILLARY
COMMITMENT) EUR
The Governor and Company of the Bank of Ireland 3,103,821.52
The Governor and Company of the Bank of Scotland 2,671,617.80
Bayerische Landesbank Girozentrale 3,103,821.52
BHF-Bank Aktiengesellschaft 3,103,821.52
CDP Euromezz ▇.▇.▇.▇. ▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ di Credito Finanziario e Mobilare S.p.A. 4,603,821.52
Dresdner Bank AG in Hamburg 3,088,989.89
Jubilee CDO I B.V. 0
Mizuho Corporate Bank, Ltd 5,535,977.31
▇▇▇▇▇▇▇ Sachs Credit Partners, LP 0
Harbourmaster Loan Corporation B.V 0
Landesbank Hessen-Thueringen Girozentrale 0
Landesbank Schleswig-Holstein Girozentrale 3,103,821.52
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation 2,439,024.38
Deutsche Bank AG, London 0
OKO Osuuspankkien Keskuspankki Oyj 0
The Prudential Assurance Company Limited 0
The Royal Bank of Scotland Plc, Niederlassung Frankfurt 4,245,283.02
Bayerische Hypo- und Vereinsbank AG 0
NORDIC INVESTMENT BANK 0
Credit Suisse First Boston 0
Duchess I CDO S.A. 0
TOTAL 35,000,000.00
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PART III
THE TERM B1 BANKS
BANK TERM B1 COMMITMENT
EUR
The Governor and Company of the Bank of Ireland 4,018,139.21
The Governor and Company of the Bank of Scotland 4,438,907.26
Bayerische Hypo- und Vereinsbank AG, London Branch 8,236,910.39
Bayerische Landesbank Girozentrale 4,018,139.21
BHF-Bank Aktiengesellschaft 4,018,139.21
Credit Suisse First Boston 3,109,375.00
Deutsche Bank AG, London 995,000.00
Mizuho Corporate Bank, Ltd 3,938,698.12
▇▇▇▇▇▇▇ Sachs Credit Partners, LP 3,728,787.45
Landesbank Hessen-Thueringen Girozentrale (HELABA) 4,018,139.21
Landesbank Schleswig-Holstein Girozentrale 4,018,139.21
Nordea Bank Finland Plc 8,236,910.38
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation 5,339,024.40
Oko Osuuspankkien Keskuspankki Oyj 4,018,139.21
The Prudential Assurance Company Limited 9,328,125.00
The Royal Bank of Scotland Plc, Niederlassung Frankfurt 8,236,910.38
Nordic Investment Bank 4,018,139.21
TOTAL 83,715,622.83
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PART IV
THE TERM B2 BANKS
BANK TERM B2 COMMITMENT
EUR
Jubilee CDO I B.V. 4,592,159.09
Duchess I CDO S.A. 3,729,718.08
CDP Euromezz S.a.R.L. 9,950,000.00
Harbourmaster Loan Corporation B.V. 7,462,500.00
TOTAL 25,734,377.17
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SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: [Facility Agent]
[Security Agent]
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, or
supplemented, the "FACILITIES AGREEMENT") dated [ ] whereby senior multicurrency
term and revolving loan facilities were made available to [ ] as original
borrower by a group of banks on whose behalf, [ ] acted as agent in connection
therewith.
1. Terms defined in the Facilities Agreement shall, subject to any
contrary indication, have the same meanings herein. The terms Bank,
Transferee and Portion Transferred are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under the
heading "BANK'S PARTICIPATION IN THE TERM FACILITIES", "TERM ADVANCES",
"BANK'S PARTICIPATION IN THE REVOLVING FACILITY", "REVOLVING ADVANCES"
and "BANK GUARANTEES" accurately summarises its participation in the
Facilities Agreement and the Interest Period or Term of any existing
Advances and (ii) requests the Transferee to accept and procure the
transfer by transfer and assumption to the Transferee of the percentage
of the Bank's Participation (equal to the percentage that the Amount
Transferred is of the aggregate of the component amounts (as set out in
the Schedule hereto) of the Bank's Participation) by counter-signing
and delivering this Transfer Certificate to the Facility Agent at its
address for the service of notices specified in the Facilities
Agreement.
3. The Transferee hereby requests the Facility Agent to accept this
Transfer Certificate as being delivered to the Facility Agent pursuant
to and for the purposes of Clause 35.5 (TRANSFERS BY BANKS) of the
Facilities Agreement so as to take effect in accordance with the terms
thereof on the Transfer Date or on such later date as may be determined
in accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the Facilities
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will
not hereafter rely on the Bank to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy, accuracy or
completeness of any such information and further agrees that it has not
relied and will not rely on the Bank to assess or keep under review on
its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Facilities Agreement that it will perform in accordance
with their terms all those obligations which by the terms of the
Facilities Agreement will be assumed by it after delivery of this
Transfer Certificate to the Facility Agent (including the obligation to
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pay an assignment and transfer fee pursuant to Clause 35.7 (ASSIGNMENT
AND TRANSFER FEES) of the Facilities Agreement) and satisfaction of the
conditions (if any) subject to which this Transfer Certificate is
expressed to take effect. The Transferee further undertakes to promptly
and duly execute an accession document to any Finance Document if so
contemplated by such Finance Document.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Facilities Agreement, the other
Finance Documents or, in any case, any document relating thereto and
assumes no responsibility for the financial condition of the Obligors
or for the performance and observance by the Obligors of any of its
obligations under the Facilities Agreement, the other Finance Documents
or, in any case, any document relating thereto and any and all such
conditions and warranties, whether express or implied by law or, in any
case, otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Facilities
Agreement or the other Finance Documents (or, in any case, any document
relating thereto) shall oblige the Bank to (a) accept a re-transfer
from the Transferee of the whole or any part of its rights, benefits
and/or obligations under the Facilities Agreement or the other Finance
Documents transferred pursuant hereto or (b) support any losses
directly or indirectly sustained or incurred by the Transferee for any
reason whatsoever including the non-performance by an Obligor or any
other party to the Facilities Agreement or the other Finance Documents
(or, in any case, any document relating thereto) of its obligations
under any such document. The Transferee hereby acknowledges the absence
of any such obligation as is referred to in (a) or (b) above.
8. Pursuant to article 1278 of the French Civil Code any Security Document
governed by French law granted by any Additional Obligor is hereby
expressively preserved for the benefit of the Transferee. The
Transferee hereby expressly consents to the declarations of the
Security Agent made on behalf and in the name of the Transferee as
Future Pledgee (as defined in the Security Documents governed by German
law) in the Security Documents governed by German law. The Transferee
confirms that it is aware of the contents of the Security Documents
governed by German law.
9. This Transfer Certificate and the rights, benefits and obligations of
the parties hereunder shall be governed by and construed in accordance
with German law.
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THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation in the Term Facilities:
(a) Bank's Term A1 Commitment Portion Transferred
(b) Bank's Term A2 Commitment Portion Transferred
(c) Bank's Term B1 Commitment Portion Transferred
(d) Bank's Term B2 Commitment Portion Transferred
(e) Bank's Term C Commitment Portion Transferred
5. Term Advances:
(a) Term A1 Advances
Amount of Bank's Participation Interest Period Portion Transferred
(b) Term A2 Advances
Amount of Bank's Participation Interest Period Portion Transferred
(c) Term B1 Advances
Amount of Bank's Participation Interest Period Portion Transferred
(d) Term B2 Advances
Amount of Bank's Participation Interest Period Portion Transferred
(e) Term C Advances
Amount of Bank's Participation Interest Period Portion Transferred
6. Bank's Participation in the Revolving Facility:
Bank's Revolving Commitment Portion Transferred
7. Revolving Advance(s):
Amount of Bank's Participation Term and Repayment Portion Transferred
Date
8. Bank Guarantee(s) (Revolving Facility Term and Expiry Portion Transferred
Banks Guarantee Proportion Date
[Transferor Bank] [Transferee Bank] Facility Agent
By: By: By:
Date: Date: Date:
_____________________________________________________________________________
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments
in [ ] EUR:
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in [ ]
Fax:
Telephone:
_____________________________________________________________________________
* Details of the Bank's Available Term Commitment should not be completed after
the last day of the Term Availability Period.
[Note: Execution and delivery of the Transfer Certificates may not be sufficient
to transfer security]
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SCHEDULE 3
CONDITIONS PRECEDENT
(A) CORPORATE DOCUMENTS
1. In relation to the Parent and Fin Newco II:
(i) a certified copy, of its constitutional documents, including
an up-to-date officially certified commercial register extract
(BEGLAUBIGTER HANDELSREGISTERAUSZUG) and the articles of
association (SATZUNG);
(ii) a certified copy of the minutes of its shareholders'
resolution authorising the execution, delivery and performance
of the Finance Documents and the terms and conditions thereof;
and
(iii) a certificate of a duly authorised officer of it setting out
the names and signatures of the persons authorised to sign as
of the date hereof, on its behalf, each Finance Document to
which it is or is to be party and each Notice of Drawdown
which may be delivered by it and confirming that the
transactions contemplated by, and the entering into of, the
Finance Documents will not contravene any provision of its
constitutional documents.
2. The Group Structure Chart (showing all Material Group Entities,
assuming that the Acquisition has completed).
(B) ACCOUNTS AND REPORTS
1. The Business Plan.
2. The other Reports.
3. The Original Financial Statements, the latest interim accounts, the
latest quarterly accounts, the latest monthly management accounts
covering a period of three months.
(C) ACQUISITION DOCUMENTS AND RELATED MATTERS
1. An executed copy, certified by an authorised representative of the
Parent as true, complete and up-to-date, of each Acquisition Document
and the documents required to be delivered pursuant thereto.
2. A certificate of a duly authorised officer of the Parent confirming
that the Acquisition pursuant to the Acquisition Documents will be
completed immediately following the concurrent making of the first
advances under the Term A1 Facility, the Term B Facility and the Term C
Facility.
3. Evidence that all governmental and regulatory consents and other
clearances and all third party consents and approvals necessary or
desirable in connection with the Acquisition (including the approval by
the relevant authorities regulating competition in the EU, Poland and
the US and any other jurisdiction as the case may be) have been
obtained and are in full force and effect.
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4. A Certificate of the Parent detailing the estimated Acquisition Costs.
(D) OFFER DOCUMENTS AND RELATED MATTERS
1. A copy, certified by an authorised representative of the Parent as
true, complete and up-to-date of the latest draft, of each Offer
Document and the documents required to be delivered pursuant thereto.
2. Evidence that all governmental and regulatory consents and other
clearances and all third party consents and approvals necessary or
desirable in connection with the Offers (including the approval by the
relevant authorities regulating competition in the EU, Poland and the
US and any other jurisdiction as the case may be) have been obtained
and are in full force and effect.
3. A certificate of the Parent confirming that the Offers comply with the
provisions of the Finnish Securities Market Act and Guideline 204.1 of
the Finnish Financial Supervision Authority.
(E) OTHER FINANCING DOCUMENTS
1. An executed copy of the Shareholder Loans.
2. Evidence that an aggregate amount of at least an amount in euro equal
to EUR 60,300,000 will be, prior to the first drawdown hereunder
contributed to the Parent by the Initial Investors as equity (including
Shareholder Loans).
3. Evidence that the ratio of equity (share capital plus share premium) to
Shareholder Loans contributed and to be contributed to the Parent is in
compliance with applicable thin capitalization rules.
4. An executed copy of the Junior Documents.
5. A draft funds flow statement in a form agreed to by the Parent, the
Arranger and the Facility Agent detailing the proposed movement of
funds on the Closing Date.
(F) SECURITY, GUARANTEE AND PRIORITY DOCUMENTS
1. The Security Documents granting, evidencing or pursuant to which the
Security will be granted, including:
(a) a duly executed pledge agreement dated on or about the date hereof
granting first ranking pledges over the Target Company Shares held or
to be held by the Parent together with evidence satisfactory to the
Facility Agent, that prior to or concurrently with the first draw-down
hereunder such pledge is registered in the relevant register; and
(b) the Assignment Agreement I and the Assignment Agreement II; and
(c) a duly executed pledge agreement dated on or about the date hereof
granting first ranking pledges over the Holding Account.
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2. A duly executed Security Trust Agreement.
3. A duly executed Intercreditor Agreement.
4. A duly executed Subordination Agreement.
(G) LEGAL OPINIONS
1. Legal Opinion, dated the date on or about the date hereof, of ▇▇▇▇▇▇▇▇
Chance, German counsel to the Facility Agent, in form and substance
satisfactory to the Arranger.
2. Legal Opinion, dated the date on or about the date hereof, of ▇▇▇▇▇▇▇ &
Indrenius, Finnish counsel to the Parent, in form and substance
satisfactory to the Arranger.
3. Legal Opinion, dated the date on or about the date hereof, of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Finnish counsel to the Facility Agent in form and substance
satisfactory to the Arranger.
4. Evidence in form and substance satisfactory to the Arranger with regard
to the up-stream-ability of retained earnings in respect of each of the
Approved Additional Borrowers.
5. Legal Opinion, dated the date on or about the date hereof, of ▇▇▇▇▇▇▇ &
Indrenius or Hannes Snellmann, Finnish counsel to the Parent, with
respect to the Merger in form and substance satisfactory to the
Arranger.
(H) MISCELLANEOUS
1. The fee letters referred to in Clauses 26.3 (ARRANGEMENT FEE AND
STRUCTURING FEE), 26.4 (FACILITY AGENCY FEE) and 26.5 (SECURITY AGENCY
FEE).
2. Agreed form Hedging Strategy Letter.
3. Agreed form Syndication Letter.
4. Evidence that the fees, costs and expenses required to be paid by the
Parent under this Agreement or in connection thereof will be paid
concurrently with the first drawdown hereto.
5. A certificate of an Authorised Signatory of the Parent confirming that
the utilisation of the Facilities would not breach any restriction of
its borrowing powers or power to grant security or give a guarantee.
6. Evidence that the Holding Account has been opened.
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SCHEDULE 4
NOTICE OF DRAWDOWN
From: [Borrower]
To: [ ]
Dated:
Dear Sirs,
1. We refer to the agreement (the "FACILITIES AGREEMENT") dated [ ] and
made between, INTER ALIA, [ ] as original borrower, [ ] as agent and
security trustee and the financial institutions named therein as Banks.
Terms defined in the Facilities Agreement shall have the same meaning
in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Facilities Agreement
and on [date of proposed Advance], we wish [the Banks]/[NAME OF BANK as
Fronting Bank] to [make an Advance] [issue a Bank Guarantee] as
follows:
(a) [principal]/[face] amount:
(b) Utilisation Date:
(c) Term:
(d) [Repayment Date]/[Expiry Date]:
4. We would like this [Advance] [Bank Guarantee] to be denominated in
[currency].
5. We would like this Advance to have a [Term] [Interest Period] of [ ]
months duration.
6. [We confirm that, at the date hereof, the representations and
warranties in Clause 20 (REPRESENTATIONS) and the Repeated
Representations are true and no Event of Default or Potential Event of
Default is continuing.]*
7. [We confirm that at the date hereof, the representations and warranties
in Clause 20 (REPRESENTATIONS) and the Repeated Representations are
true and no Event of Default has occurred or would occur as a result of
the making of such Term Advance.]**
8. The proceeds of this drawdown should be credited to [insert account
details]. [The Bank Guarantee should be issued in favour of [NAME OF
RECIPIENT] in the form attached and delivered to the recipient at
[ADDRESS OF RECIPIENT]. The purpose of its issue is [o].
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Yours faithfully
.............................
Authorised Signatory
for and on behalf of
[Name of Borrower]
* not required in the case of a Push-Down Advance;
** only required in the case of a Push-Down Advance;
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SCHEDULE 5
FINANCIAL CONDITION
1. TOTAL DEBT LEVERAGE RATIO
The Total Debt Leverage Ratio for each Relevant Period calculated on a
Rolling Basis, shall not at the end of each Financial Quarter during
the time periods specified below be more than the ratio set out in
column 2 below opposite such time period:
COLUMN 1 COLUMN 2
1 October 2001 - 30 September 2002 5.00
1 October 2002 - 30 June 2003 5.15
1 July 2003 - 30 September 2003 4.90
1 October 2003 - 31 March 2004 4.55
1 April 2004 - 30 June 2004 4.25
1 July 2004 - 30 September 2004 4.00
1 October 2004 - 30 September 2005 3.50
1 October 2005 - 30 September 2006 3.00
1 October 2006 - 30 September 2007 2.75
1 October 2007 - 30 September 2008 2.50
1 October 2008 - 30 September 2009 2.00
1 October 2009 - 30 September 2010 2.00
"TOTAL DEBT LEVERAGE RATIO" means in respect of any Relevant Period,
the ratio of Total Net Debt to Consolidated Adjusted EBITDA for such
Relevant Period.
2. SENIOR DEBT LEVERAGE RATIO
The Senior Debt Leverage Ratio for each Relevant Period calculated on a
Rolling Basis, shall not at the end of each Financial Quarter during
the time periods specified below be more than the ratio set out in
column 2 below opposite such time period:
COLUMN 1 COLUMN 2
1 October 2001 - 30 September 2002 3.50
1 October 2002 - 30 September 2003 3.25
1 October 2003 - 30 September 2004 2.75
1 October 2004 - 30 September 2005 2.25
1 October 2005 - 30 September 2006 2.00
1 October 2006 - 30 September 2007 1.50
1 October 2007 - 30 September 2008 1.00
1 October 2008 - 30 September 2009 1.00
1 October 2009 - 30 September 2010 1.00
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"SENIOR DEBT LEVERAGE RATIO" means in respect of any Relevant Period,
the ratio of Total Net Senior Debt to Consolidated Adjusted EBITDA for
such Relevant Period.
3. INTEREST COVER
The Interest Cover for each Relevant Period, calculated on a Rolling
Basis, shall not at the end of each Financial Quarter during the time
periods specified below be less than the ratio set out in column 2
below opposite such time periods:
COLUMN 1 COLUMN 2
1 October 2001 - 30 September 2003 2.20
1 October 2003 - 30 September 2005 2.50
1 October 2005 - 30 September 2006 3.00
1 October 2006 - 30 September 2010 3.50
"INTEREST COVER" means, in relation to any Relevant Period, the ratio
of Consolidated Adjusted EBITDA to Consolidated Cash Net Finance
Charges for such Relevant Period.
4. FIXED CHARGE COVER
The Fixed Charge Cover in respect of each Relevant Period, calculated
on a Rolling Basis, shall not at the end of each Financial Quarter,
starting with the Financial Quarter ending on 31 December 2001, be less
than 1.00 throughout.
"FIXED CHARGE COVER" means, in respect of any Relevant Period, the
ratio of (i) the sum of Consolidated Operational Cash Flow and Cash to
(ii) Net Debt Service.
5. CAPITAL EXPENDITURE
The Group shall not in any financial year incur Capital Expenditure in
excess of the amount set out in Column 2 below opposite such financial
year:
COLUMN 1 COLUMN 2
FINANCIAL YEAR ENDING AMOUNT (EUR MIL)
31 December 2001 70
31 December 2002 50
31 December 2003 50
31 December 2004 60
31 December 2005 60
31 December 2006 60
31 December 2007 65
31 December 2008 70
31 December 2009 70
31 December 2010 70
FINANCIAL DEFINITIONS
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In Clause 22 (FINANCIAL CONDITION) and this Schedule 5 the following terms have
the following meanings.
"CAPITAL EXPENDITURE" means any expenditure (i) excluding any
reinvestment of net disposal proceeds where such proceeds are
reinvested in assets of the same class, (ii) excluding any replacement
of assets out of insurance proceeds (iii) excluding without double
counting any subsidies received from third parties outside the Group
(iv) excluding minor individual investments which according to the
Target Group's fixed asset valuation principles are to Be expensed
following the materiality principle of accounting (v) for the avoidance
of doubt excluding any one-off effects from the acquisition and first
time consolidation of the Caradon/Twyford Bathrooms business (vi)
excluding acquisition of shares and/or business operations and (vii)
for the avoidance of doubt also excluding revaluations of any existing
assets and equity increases in existing subsidiaries of the Group and
(viii) including any reinvestment of disposal proceeds other than such
referred to under (i) above or obligations in respect of expenditure
(including any obligation in respect of the capital element of any
finance lease, operating lease or capital lease) for the acquisition of
equipment, fixed assets, real property, intangible assets and other
assets of a capital nature, or for the replacements or substitutions
therefore or additions or improvements thereto in each case which would
be treated as a capital asset in accordance with the Accounting Terms
and Principles set out below in this Schedule 5, together with costs
incurred in connection therewith.
"CASH" means outstanding cash balances and cash equivalents (e.g.
especially monies held at banks on current accounts, including for the
avoidance of doubt the Holding Account as well as any negotiable
instruments which are at any time freely convertible into cash at
secondary markets).
"CONSOLIDATED ADJUSTED EBITDA" means the consolidated net profit (or
loss) of the Group before:
(a) minority interests;
(b) taxes for the Relevant Period, including any provision made on
account of taxation;
(c) change in deferred taxes;
(d) Consolidated Net Finance Charges for such period;
(e) share of profits or losses in associated companies;
(f) the aggregate net amount of any realised and unrealised
exchange gains and losses related to financial transactions
and balances including, without limit, those arising on
translation of currency borrowings and a ▇▇▇▇-to-market
valuation of currency hedging arrangements;
(g) any items treated as exceptional or extraordinary items;
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(h) any operational expenses directly related to an acquisition,
e.g. restructuring costs and provisions, consultancy and
advisory fees, for which the Accounting Terms and Principles
set out below in this Schedule 5 offer the option to either
capitalize the respective amounts as part of consolidation
goodwill or directly expense them in the year they have been
incurred;
(i) any amount attributable to amortisation of intangible assets
(including the amortisation of goodwill) and depreciation of
tangible assets and amortisation; and
(j) any amount (not exceeding Euro 1 Mio.) attributable to
e-commerce business project in 2001.
"CONSOLIDATED CASH NET FINANCE CHARGES" means Consolidated Net Finance
Charges deducting all interest payments which have to be capitalized.
"CONSOLIDATED NET FINANCE CHARGES" means the aggregate consolidated
amount of the interest, commission, discounts and other finance
payments payable (in cash or in non-cash accrued form) by the Group:
(a) INCLUDING any commission, fees, discounts and other finance
payments payable under any interest rate or currency hedging
arrangement;
(b) BUT DEDUCTING (i) any commission, fees, discounts and other
finance payments receivable under any interest rate or
currency hedging instrument permitted by this Agreement and
(ii) any interest receivable on any deposit, bank account or
financial asset and (iii) any dividend income received;
(c) BUT EXCLUDING (i) any Acquisition Costs and (ii) any Senior
Notes Costs.
"CONSOLIDATED OPERATIONAL CASH FLOW" means the consolidated net profit
(or loss) of the Group (and in respect of the period prior to the
Closing Date, the Target Group) after
adding:
(a) any amount attributable to amortisation of intangible assets
(including the amortisation of goodwill) and depreciation of
tangible assets and amortisation;
(b) any decrease in the amount of Working Capital;
(c) any increase in long term provisions;
(d) any provision or accrual made for taxes, including any
increase in deferred taxes;
(e) Consolidated Cash Net Finance Charges;
(f) any cash paid in respect of any exceptional or extraordinary
item;
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and deducting:
(a) any amount of Capital Expenditure actually made by any member
of the Group;
(b) any increase in the amount of Working Capital;
(c) any cash received in respect of any exceptional or
extraordinary item;
(d) any decrease in long term provisions,
and so that no amount shall be included or excluded more than once and
PROVIDED THAT any decreases or increases resulting from the Acquisition
Costs, the Senior Notes Costs or any costs arising out of transactions
referred to in the Hedging Strategy Letter passed through the profit
and loss account as an expense shall be deducted or added back as the
case may be.
"CURRENT ASSETS" means at any time the consolidated sum of inventory
and non-interest bearing receivables of the Group including INTER ALIA,
trade receivables, receivables from affiliates and other receivables
including sundry debtors (but excluding cash at bank and in hand)
maturing within twelve months from the date of computation.
"CURRENT LIABILITIES" means at any time the sum of provisions and
consolidated non-interest bearing liabilities of the Group falling due
within twelve months (including inter alia trade creditors,
prepayments, accruals, amounts payable to affiliates excluding any
Financial Indebtedness).
"EXCESS CASH FLOW" shall be calculated for each full financial year,
and it means, Consolidated Operational Cash Flow for that period less:
(a) Net Debt Service excluding, for the avoidance of doubt, the
amounts of any proceeds received in connection with the Junior
Take-Out and the PIK Take-Out to the extent such amounts are
applied in such period in the prepayment of amounts
outstanding under the Junior Facility Agreement, the Liquidity
Facility Agreement, this Agreement or as agreed in writing by
an Instructing Group (as the case may be);
(b) for any period prior to the Registration of the Senior Notes
with the SEC following the Junior Take-Out: (i) the
Acquisition Costs less that portion of the Acquisition Costs
which have already been incurred in previous periods, (ii) any
costs prefunded to finance the Junior Take-Out (including the
Senior Notes Costs) (together with the Acquisition Costs up to
an aggregate amount of EUR 60,300,000) and (iii) any costs
arising out of any transaction referred to in the Hedging
Strategy Letter;
(c) for the period in which the Registration of the Senior Notes
with the SEC following the Junior Take-Out has occurred
adding: any Acquisition Costs or any costs (including the
Senior Notes Costs) which have been prefunded to finance the
Junior Take-Out and have not been expensed or accrued for;
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(d) for the period in which the Registration of the Senior Notes
with the SEC following the Junior Take-Out has occurred:
accrued but unpaid interest on the Senior Notes;
(e) any Capital Expenditure incurred but not yet paid;
(f) any Capital Expenditure contained in the Budget for such
period; and
(g) monies outstanding under the Liquidity Facility Agreement
other than Permanent Drawings (as defined in the Liquidity
Facility Agreement) at the end of such period,
without double counting.
"FINANCIAL QUARTER" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"NET DEBT SERVICE" means the aggregate of:
(a) Consolidated Cash Net Finance Charges; and
(b) the aggregate of scheduled and mandatory payments (excluding
those mandatory payments which have to be effected according
to Clause 14.4 (MANDATORY PREPAYMENT OF EXCESS CASH)) of any
Indebtedness for Borrowed Money falling due.
"QUARTER DATE" means each of 31 March, 30 June, 30 September and 31
December.
"RELEVANT PERIOD" means each period of twelve months ending on the last
day of the Parent's financial year and each period of twelve months
ending on the last day of each Financial Quarter of the Parent's
financial year.
"ROLLING BASIS" refers to the calculation of a ratio or an amount made
at the end of a Financial Quarter in respect of that Financial Quarter
and each of the preceding three Financial Quarters.
"TOTAL CASH INTEREST EXPENSE" means, at any time (without double
counting), the consolidated aggregate interest expenses of the Group
but deducting interest expenses which do not have to be paid in cash
but on an accrued basis.
"TOTAL NET DEBT" means, at any time (without double counting), the
aggregate consolidated indebtedness of the Group (and in respect of the
period prior to the Closing Date, the Target Group) constituting
Indebtedness for Borrowed Money but:
(a) excluding such Indebtedness of any Group (or, as the case may
be, Target Group) member to the Initial Investors, Dutch Newco
or Lux Newco II (as the case may be) arising under Shareholder
Loans (including following the Shareholder Loan Restructuring)
(whether directly or indirectly); and
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(b) also excluding Indebtedness arising under the PIK On-Loan and
the PIK Loan Agreement and pursuant to the PIK Loan
Restructuring; and
(c) deducting Cash and without double counting all interest
bearing receivables
"TOTAL NET SENIOR DEBT" means, at any time (without double counting),
the consolidated Indebtedness for Borrowed Money constituting such part
of the Total Net Debt as is outstanding under the Senior Facilities
Agreement or ranking pari passu with such indebtedness but deducting
the Cash held at such time.
"WORKING CAPITAL" means at any date:
(a) the Current Assets of the Group (and in respect of the period
prior to the Closing Date, the Target Group); less
(b) the Current Liabilities of the Group (and in respect of the
period prior to the Closing Date, the Target Group).
FINANCIAL TESTING
The financial covenants set out in Schedule 5 (FINANCIAL CONDITION) shall be
tested for the Relevant Period, as of the last day of the Financial Quarter
ending on or about the dates specified above, by reference to each of the
financial statements and/or each Compliance Certificate delivered pursuant to
Clause 21 (FINANCIAL INFORMATION) except for item 5 (Capital Expenditure) which
shall be tested as at the end of each financial year.
For the first Relevant Period ending on 31 December 2001 the computation of
year-on-year changes in all assets and liabilities of the Target Group shall be
adjusted for one-off effects resulting out of the first time consolidation of
the Caradon/Twyford Bathrooms business.
The financial condition and the amount of Excess Cash Flow, as the case may be,
set out in and certified by any Compliance Certificate shall in the absence of
manifest error be conclusive.
ACCOUNTING TERMS AND PRINCIPLES
For the avoidance of doubt, all the financial covenants specified in this
schedule shall be calculated based on the consolidated financial statements of
the Group (and in respect of the period prior to the Closing Date, the Target
Group). Any transactions or balances between subsidiaries of the Group or the
Parent and any of its subsidiaries shall be eliminated in the consolidation.
All accounting, reporting and consolidation principles as well as any accounting
terminology not defined separately herein, shall be construed in accordance with
generally accepted accounting principles prevailing in Finland at any time, as
consistently applied by the Group.
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SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: [ ]
Date:
Dear Sirs,
1. We refer to an agreement (the "FACILITIES AGREEMENT") dated [ ] and
made between, INTER ALIOS, [ ] as original borrower, [ ] as agent and
security trustee, the financial institutions defined therein as Banks
and others.
2. Terms defined in the Facilities Agreement shall bear the same meaning
herein.
3. We confirm that on the Financial Quarters ending as indicated in Column
1 below the ratios or amounts set out below are as follows:
(a) TOTAL DEBT LEVERAGE RATIO
COLUMN 1 COLUMN 2
FINANCIAL QUARTER ENDING RATIO
[ ] [ ]
(b) SENIOR DEBT LEVERAGE RATIO
COLUMN 1 COLUMN 2
FINANCIAL QUARTER ENDING RATIO
[ ] [ ]
(c) INTEREST COVER
COLUMN 1 COLUMN 2
FINANCIAL QUARTER ENDING RATIO
[ ] [ ]
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(d) FIXED CHARGE COVER
The Fixed Charge Cover is [ ]
(e) CAPITAL EXPENDITURE
COLUMN 1 COLUMN 2
FINANCIAL YEAR ENDING AMOUNT (EUR)
[ ] [ ]
4. The amount of Excess Cash flow for financial year ending [ ] is: ]
5. We confirm that the Material Group Entities at the date hereof are
[ ].
6. [We confirm that no Event of Default or Potential Event of Default was
continuing unremedied or unwaived on [SPECIFY YEAR END OR QUARTER END
DATE TO WHICH CERTIFICATE RELATES] [OTHER THAN [ ]]*.
7. [We confirm that the Repeated Representations were true on [SPECIFY
YEAR END OR QUARTER END DATE TO WHICH CERTIFICATE RELATES] [other than
[ ]]*
[Signed: ......................... .........................
Director Director
of of
[Parent] [Parent]
OR
..............................
for and on behalf of
[name of auditors of [the Parent]
----------
*Only to be given by Parent, not auditors.
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SCHEDULE 7
FORM OF BORROWER/GUARANTOR ACCESSION AGREEMENT
This Accession Agreement is made on the [ ] day of [ ]
Between:
1. [ ] on behalf of itself as agent and on behalf of the Finance
Parties (the "AGENT");
2. [Subsidiary] (the "Additional Borrower"/the "Additional Guarantor");
and
3. [ ] (the "Parent").
WHEREAS
(A) By an agreement (the "FACILITIES AGREEMENT") dated [ ] and made, INTER
ALIOS, between [ ] as original borrower, [ ] as facility agent and
security agent, the financial institutions defined therein as Banks and
others, term and revolving loan facilities were made available to the
Borrowers named therein.
(B) [The Parent] requests that [SUBSIDIARY] become an [Additional
Borrower/Guarantor] pursuant to Clause 36.1 [(REQUEST FOR ADDITIONAL
BORROWER)/Clause 37.1 (REQUEST FOR ADDITIONAL Guarantor)] of the
Facilities Agreement.
Now it is hereby agreed as follows:
1. Terms defined in the Facilities Agreement shall bear the same meaning
herein.
[THE ADDITIONAL BORROWER HEREBY REPRESENTS THAT THE TRANSACTIONS REFERRED TO IN
THIS AGREEMENT WILL BE UNDERTAKEN ON ITS OWN BEHALF.]
2. [SUBSIDIARY/THE APPROVED ADDITIONAL BORROWER] hereby requests the
Facility Agent to accept this Accession Agreement as being delivered to
the Facility Agent pursuant to and for the purposes of [Clause 36.1
(REQUEST FOR ADDITIONAL BORROWER)/Clause 36.3 (APPROVED SUBSTITUTE
BORROWER)/Clause 37 (ADDITIONAL GUARANTORS)] of the Facilities
Agreement and its accession as a Revolving Borrower**/Guarantor** and
undertakes, upon its becoming a Borrower/Guarantor, to perform all the
obligations expressed to be undertaken under the Facilities Agreement
and the Finance Documents by a Borrower/Guarantor and agrees that it
shall be bound by the Facilities Agreement and the Finance Documents in
all respects as if it had been an original party thereto as a
Borrower/Guarantor.
3. [In accordance with Clause 8 (ANCILLARY FACILITIES) of the Facilities
Agreement, the Additional Borrower hereby requests the establishment of
an Ancillary Facility by conversion of [ ] of [ ]'s Available Revolving
Commitment into an Ancillary Commitment with effect from [ ], such
Ancillary Facility being [ ] and expiring on [ ].]
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[3./4.] [SUBSIDIARY] is a company duly organised under the laws of [NAME OF
RELEVANT JURISDICTION].
[4./5.] [SUBSIDIARY] confirms that it has received from [the Parent] a true and
up-to-date copy of the Facilities Agreement [and a list of the
Borrowers as at the date hereof].
[5./6.] [The Parent confirms on its own behalf and on behalf of all Obligors
that, if [SUBSIDIARY] is accepted as an Additional Borrower, its
guarantee obligations (and the guarantee obligations of other Obligors)
pursuant to Clause 25 (GUARANTEE AND INDEMNITY) of the Facilities
Agreement will apply to all the obligations of [SUBSIDIARY] under the
Finance Documents in all respects in accordance with the terms of the
Facilities Agreement.]
[6./7.] [the Parent]:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of
Default is continuing or would occur as a result of
[SUBSIDIARY] becoming an Additional Borrower/Additional
Guarantor.
[7./8.] [SUBSIDIARY] makes the Repeated Representations and the representation
pursuant to Clause 20.9 (CLAIMS PARI PASSU) of the Facilities
Agreement.
[8./9.] [SUBSIDIARY'S] administrative details are as follows:
Address:
Fax No.:
[9./10.] [PROCESS AGENT* [SUBSIDIARY] agrees that the documents which start
any Proceedings and any other documents required to be served in
relation to those Proceedings may be served on [ ] at its principal
place of business in the Federal Republic of Germany. If the
appointment of [ ] ceases to be effective, [SUBSIDIARY] shall
immediately appoint another person in the Federal Republic of Germany
to accept service of process on its behalf in the Federal Republic of
Germany. If it fails to do so (and such failure continues for a
period of not less than fifteen days), the Facility Agent shall be
entitled to appoint such a person by notice. Nothing contained herein
shall restrict the right to serve process in any other manner allowed
by law. This applies to Proceedings in the Federal Republic of
Germany and to Proceedings elsewhere.]
[10./11.] The Parent and [SUBSIDIARY] represent that the transactions referred
to in this Memorandum will be undertaken on its own account.
[9./10./11.] This Memorandum shall be governed by German law.
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AS WITNESS the hand of the duly authorised representatives of the parties hereto
the day and year first before written.
* This clause is required only if the subsidiary is not incorporated in the
Federal Republic of Germany.
** Subject to the consent of all the Banks and Clause 36 (ADDITIONAL
BORROWERS), Allia International S.A.S. and Allia S.A.S. may also accede as
Borrowers under the Term A2 Facility, Sanitec Kolo Sp. z o.o. may accede as
a Borrower under the Term A2 Facility and the Term B1 Facility and certain
other subsidiaries of the Parent may accede as a Borrower under the Term A2
Facility and the Term B1 Facility.
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SCHEDULE 8
PART A
ADDITIONAL CONDITIONS PRECEDENT FOR ADDITIONAL/SUBSTITUTE OBLIGORS
1. A copy, certified as at the date of the relevant Accession Agreement a
true and up-to-date copy by an Authorised Signatory of the proposed
Additional Obligor, of the constitutional documents of such proposed
Additional Obligor, in relation to any German Additional Obligor,
including an up-to-date officially certified commercial register
extract (BEGLAUBIGTER HANDELSREGISTERAUSZUG) and the articles of
association (SATZUNG).
2. A copy, certified as at the date of the relevant Accession Agreement a
true and up-to-date copy by an Authorised Signatory of the proposed
Additional Obligor, of any necessary board resolution and/or
shareholders' resolution of such proposed Additional Obligor approving
the execution and delivery of an Accession Agreement, the accession of
such proposed Additional Obligor to this Agreement and the performance
of its obligations under the Finance Documents and authorising a named
person or persons to sign such Accession Agreement, any other Finance
Document and any other documents to be delivered by such proposed
Additional Obligor pursuant thereto.
3. A certificate of an Authorised Signatory of the proposed Additional
Obligor setting out the names and signatures of the person or persons
authorised to sign, on behalf of such proposed Additional Obligor, the
Accession Agreement, any other Finance Documents and any other
documents to be delivered by such proposed Additional Obligor pursuant
thereto.
4. If the proposed Additional Obligor is incorporated in a jurisdiction
other than the Federal Republic of Germany, a certificate of an
Authorised Signatory of the proposed Additional Obligor confirming that
the utilisation of the Facilities would not breach any restriction of
its borrowing powers or power to grant security or give a guarantee.
5. If the proposed Additional Obligor is incorporated in a jurisdiction
other than the Federal Republic of Germany, a copy, certified a true
copy by or on behalf of the proposed Additional Obligor, of each such
law, decree, consent, licence, approval, registration or declaration as
is, in the opinion of counsel to the Banks, necessary to render the
relevant Accession Agreement legal, valid, binding and enforceable, to
make such Accession Agreement admissible in evidence in the proposed
Additional Obligor's jurisdiction of incorporation and to enable the
proposed Additional Obligor to perform its obligations thereunder and
under the other Finance Documents.
6. A copy, certified a true copy by an Authorised Signatory of the
proposed Additional Obligor, of its latest financial statements.
7. If the proposed Additional Obligor is incorporated in a jurisdiction
other than the Federal Republic of Germany, an opinion of the Banks'
local counsel in the Relevant Jurisdiction in form and substance
satisfactory to the Facility Agent.
8. An opinion of ▇▇▇▇▇▇▇▇ Chance in form and substance satisfactory to the
Facility Agent.
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9. If the proposed Additional Obligor is incorporated in a jurisdiction
other than the Federal Republic of Germany, evidence that the process
agent specified in the relevant Accession Agreement has agreed to act
as its agent for the service of process in the Federal Republic of
Germany.
10. An accession document duly executed effecting the Obligor's accession
to the Intercreditor Agreement and the Security Trust Agreement.
11. In case of the Approved Substitute Borrower and/or the Approved
Substitute Guarantor or only evidenced satisfactory to the Facility
Agent that the Approved Substitute Borrower/Approved Substitute
Guarantor (i) is a newly incorporated limited liability company which
has not been trading or undertaken any commercial activities of any
kind, has no assets and has not incurred any obligations or liabilities
(actual or contingent).
12. In case of the Approved Substitute Borrower only an accession document
duly executed effecting its accession to the Subordination Agreement.
13. In case of an Approved Additional Borrower, each Bank under the Term B1
Facility and the Term C Facility is permitted by applicable law and its
constitutive documents to lend under such Facilities to such Approved
Additional Borrower.
14. In the case of an Approved Additional Borrower, evidence with regard to
the upstreamability of retained earnings in respect of such Approved
Additional Borrower.
15. In the case of an Exchange Borrower, evidence that each Bank under the
Term A2 Facility is permitted by applicable law and its constitutive
documents to lend under such Facility to such Exchange Borrower.
16. In the case of a Relevant Exchange Borrower, evidence that each Bank
under the Term A2 Facility and the Term B1 Facility is permitted by
applicable law and its constitutive documents to lend under such
Facilities to such Exchange Borrower.
PART B
ADDITIONAL CONDITIONS PRECEDENT FOR BORROWER TRANSFER AGREEMENTS
1. In relation to the Existing Borrower and the New Borrower as referred
to in the relevant Borrower Transfer Agreement and in relation to the
Parent:
(a) a certified copy of the constitutional documents of such
entity or, where relevant, a confirmation, given by an
Authorised Signatory of such entity,
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certifying that, as at the date hereof, there has been no
change to the constitutional documents delivered by such
entity pursuant to the Senior Facilities Agreement on the date
it executed or acceded to (as applicable) this Agreement;
(b) a copy, certified as at the date of the relevant Borrower
Transfer Agreement a true and up-to-date copy by an Authorised
Signatory of such entity, of a board/shareholders/managing
directors resolution or any other resolution required by law
of such entity approving the execution, delivery and
performance of the relevant Borrower Transfer Agreement, and
terms and conditions thereof and authorising a named person or
persons to sign the relevant Borrower Transfer Agreement; and
(c) a certificate of an Authorised Signatory of such entity
setting out the names and signatures of the persons authorised
to sign, on behalf of such entity, the relevant Borrower
Transfer Agreement and any documents to be delivered by such
entity pursuant thereto.
2. Any documents that the Facility Agent requires to ensure that any
Security granted by any of the Obligors is not adversely affected in
any way by the proposed transfer.
3. In relation to the Existing Borrower and the New Borrower as referred
to in the relevant Borrower Transfer Agreement, a copy, certified a
true copy by an Authorised Signatory of such entity of its latest
financial statements and in relation to the New Borrower, evidence that
the New Borrower will be able to comply with its payment obligations
(present and future) under the Finance Documents following the relevant
transfer.
4. In the case of: (i) the first transfer to be made to a New Borrower
(other than Allia S.A.S. and the Original Borrower), (ii) a transfer to
be made to Allia International S.A.S. in connection with the Keramag
Acquisition and (iii) a transfer (or series of related transfers) to be
made to a New Borrower in an amount of EUR 20,000,000 or more:
(a) in relation to the Existing Borrower and the New Borrower, an
opinion of the Facility Agent's local counsel in the Relevant
Jurisdiction of each of the Existing Borrower and the New
Borrower in form and substance satisfactory to the Facility
Agent; and
(b) an opinion of ▇▇▇▇▇▇▇▇ Chance Punder, German counsel to the
Facility Agent relating to the relevant Borrower Transfer
Agreement.
5. Evidence satisfactory to the Facility Agent that no Event of Default
under Clauses 24.6 (INSOLVENCY AND RESCHEDULING) to 24.9 (FAILURE TO
COMPLY) relating to the Existing Borrower or the New Borrower has
occurred or is likely to occur which could result in the transfer
pursuant to the relevant Borrower Transfer Agreement being avoided or
reduced under applicable law.
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SCHEDULE 9
FORM OF RESIGNATION NOTICE
To: [ ]
From: [Parent]
Dated:
Dear Sirs,
1. We refer to an agreement (the "FACILITIES AGREEMENT") dated 6 June 2000
and made, INTER ALIA, between [ ] as original borrower, [ ] as facility
agent and security agent, the financial institutions defined therein as
Banks and others.
2. Terms defined in the Facilities Agreement shall bear the same meaning
herein.
3. We declare that [NAME OF BORROWER] is under no actual or contingent
obligation under any Finance Document in its capacity as a Borrower.
4. Pursuant to Clause 36.4 (RESIGNATION OF A BORROWER) we hereby request
that [name of Obligor] shall cease to be a Borrower under the
Facilities Agreement.
Yours faithfully
[[the Parent]]
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SCHEDULE 10
FACILITY AGENT'S DISCRETION AND OBLIGATIONS
1. The Facility Agent may:
1.1 assume, unless it has, in its capacity as agent for the Banks, received
notice to the contrary from any other party hereto, that (i) any
representation made or deemed to be made by an Obligor in connection
with any Finance Document is true, (ii) no Event of Default or
Potential Event of Default has occurred, (iii) no Obligor is in breach
of or default under its obligations under any Finance Document and (iv)
any right, power, authority or discretion vested herein upon an
Instructing Group, the Banks or any other person or group of persons
has not been exercised;
1.2 assume that the Facility Office of each Bank is that identified with
its signature below (or, in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as Transferee) until it has
received from such Bank a notice designating some other office of such
Bank to replace its Facility Office and act upon any such notice until
the same is superseded by a further such notice;
1.3 engage and pay for the advice or services of any lawyers, accountants,
surveyors or other experts whose advice or services may to it seem
necessary, expedient or desirable and rely upon any advice so obtained;
1.4 rely as to any matters of fact which might reasonably be expected to be
within the knowledge of an Obligor upon a certificate signed by or on
behalf of such Obligor;
1.5 rely upon any communication or document believed by it to be genuine;
1.6 refrain from exercising any right, power or discretion vested in it as
agent under any Finance Document unless and until instructed by an
Instructing Group as to whether or not such right, power or discretion
is to be exercised and, if it is to be exercised, as to the manner in
which it should be exercised;
1.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising out
of or in connection with any Finance Document until it shall have
received such security as it may require (whether by way of payment in
advance or otherwise) for all costs, claims, losses, expenses
(including legal fees) and liabilities together with any VAT thereon
which it will or may expend or incur in complying with such
instructions;
1.8 assume (unless it has specific notice to the contrary) that any notice
or request made by the Parent is made on behalf of all the Obligors;
and
1.9 (unless it is instructed otherwise by an Instructing Group) give any
confirmation referred to in paragraph (e) of Clause 36.6 (EXCHANGE
BORROWERS) without consulting the other Finance Parties.
2. FACILITY AGENT'S OBLIGATIONS
The Facility Agent shall:
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2.1 promptly inform each Bank of the contents of any notice or document
received by it in its capacity as Facility Agent from an Obligor under
any Finance Document;
2.2 promptly notify each Bank of the occurrence of any Event of Default or
any default by an Obligor in the due performance of or compliance with
its obligations under any Finance Document of which the Facility Agent
has notice from any other party hereto;
2.3 save as otherwise provided herein, act as agent under any Finance
Document in accordance with any instructions given to it by an
Instructing Group, which instructions shall be binding on the Arranger
and the Banks; and
2.4 if so instructed by an Instructing Group, refrain from exercising any
right, power or discretion vested in it as agent under any Finance
Document.
The Facility Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
3. EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Facility Agent nor the Arranger shall:
3.1 be bound to enquire as to (i) whether or not any representation made or
deemed to be made by an Obligor in connection with any Finance Document
is true, (ii) the occurrence or otherwise of any Event of Default or
Potential Event of Default, (iii) the performance by an Obligor of its
obligations under any Finance Document or (iv) any breach of or default
by an Obligor of or under its obligations under any Finance Document;
3.2 be bound to account to any Bank for any sum or the profit element of
any sum received by it for its own account;
3.3 be bound to disclose to any other person any information relating to
any member of the Group if (i) such person, on providing such
information, expressly stated to the Facility Agent or, as the case may
be, the Arranger, that such information was confidential or (ii) such
disclosure would or might in its opinion constitute a breach of any law
or be otherwise actionable at the suit of any person;
3.4 be under any obligations other than those for which express provision
is made in any Finance Document; or
3.5 be or be deemed to be a fiduciary for any other party to any Finance
Document.
4. INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by the
Facility Agent, indemnify the Facility Agent against any and all costs,
claims, losses, expenses (including legal fees) and liabilities
together with any VAT thereon which the Facility Agent may incur,
otherwise than by reason of its own gross negligence or wilful
misconduct, in acting in its capacity as agent under any Finance
Document (other than
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any which have been reimbursed by the Parent pursuant to Clause 28.3
(PARENT'S INDEMNITY)).
5. EXCLUSION OF LIABILITIES
Except in the case of gross negligence or wilful default, none of the
Facility Agent and the Arranger accepts any responsibility:
5.1 for the adequacy, accuracy and/or completeness of the Information
Memorandum or any other information (including without limitation the
documents listed in Schedules 3 and 8) supplied by the Facility Agent
or the Arranger, by an Obligor or by any other person in connection
with any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of, pursuant to
or in connection with any Finance Document;
5.2 for the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document (including without limitation the documents
listed in Schedules 3 and 8) or any other agreement, arrangement or
document entered into, made or executed in anticipation of, pursuant to
or in connection with any Finance Document; or
5.3 for the exercise of, or the failure to exercise, any judgment,
discretion or power given to any of them by or in connection with any
Finance Document or any other agreement, arrangement or document
entered into, made or executed in anticipation of, pursuant to or in
connection with any Finance Document.
Accordingly, none of the Facility Agent and the Arranger shall be under
any liability (whether in negligence or otherwise) in respect of such
matters, save in the case of gross negligence or wilful misconduct.
6. NO ACTIONS
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Facility Agent or the
Arranger any claim it might have against any of them in respect of the
matters referred to in Clause 5 of this Schedule 11.
7. BUSINESS WITH THE GROUP
The Facility Agent and the Arranger may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Group.
8. RESIGNATION
The Facility Agent may resign its appointment hereunder at any time
without assigning any reason therefor by giving not less than thirty
days' prior notice (or, prior to the Syndication Date, 5 days prior
notice) to that effect to each of the other parties hereto, PROVIDED
THAT no such resignation shall be effective until a successor for the
Facility Agent is appointed in accordance with the succeeding
provisions of this Schedule 10.
9. REMOVAL OF FACILITY AGENT
An Instructing Group may remove the Facility Agent from its role as
agent hereunder by giving notice to that effect to each of the other
parties hereto. Such removal shall
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take effect only when a successor to the Facility Agent is appointed in
accordance with the terms hereof.
10. SUCCESSOR FACILITY AGENT
If the Facility Agent gives notice of its resignation pursuant to
Clause 8 (RESIGNATION) of this Schedule 10, or it is removed pursuant
to Clause 9 (REMOVAL OF FACILITY AGENT) of this Schedule 10, then any
reputable and experienced bank or other financial institution may be
appointed as a successor to the Facility Agent by an Instructing Group
(who shall consult with the Parent) during the period of such notice
but, if no such successor is so appointed, the Facility Agent may
appoint such a successor itself.
11. RIGHTS AND OBLIGATIONS
If a successor to the Facility Agent is appointed under the provisions
of Clause 10 (SUCCESSOR FACILITY AGENT) of this Schedule 10, then (a)
the retiring or departing Facility Agent shall be discharged from any
further obligation under any Finance Document but shall remain entitled
to the benefit of the provisions of this Schedule 10 and (b) its
successor and each of the other parties to any Finance Document shall
have the same rights and obligations amongst themselves as they would
have had if such successor had been a party to any Finance Document.
12. OWN RESPONSIBILITY
It is understood and agreed by each Bank that at all times it has
itself been, and will continue to be, solely responsible for making its
own independent appraisal of and investigation into all risks arising
under or in connection with the Finance Documents including, but not
limited to:
12.1 the financial condition, creditworthiness, condition, affairs, status
and nature of each member of the Group;
12.2 the legality, validity, effectiveness, adequacy and enforceability of
any Finance Documents and any other agreement, arrangement or document
entered into, made or executed in anticipation of, pursuant to or in
connection with any Finance Document;
12.3 whether such Bank has recourse, and the nature and extent of that
recourse, against an Obligor or any other person or any of their
respective assets under or in connection with any Finance Document, the
transactions therein contemplated or any other agreement, arrangement
or document entered into, made or executed in anticipation of, pursuant
to or in connection with any Finance Document; and
12.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Facility Agent or
the Arranger, an Obligor, or by any other person in connection with any
Finance Document, the transactions contemplated therein or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Document.
12.5 Accordingly, each Bank acknowledges to the Facility Agent and the
Arranger that it has not relied on and will not hereafter rely on the
Facility Agent and the Arranger or any of them in respect of any of
these matters.
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13. AGENCY DIVISION SEPARATE
In acting as agent under the Finance Documents for the Banks, the
Facility 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 and, notwithstanding the foregoing provisions
of this Schedule 10, any information received by some other division or
department of the Facility Agent may be treated as confidential and
shall not be regarded as having been given to the Facility Agent's
agency division.
14. RELIANCE AND ENGAGEMENT LETTERS
Each Finance Party confirms that the Facility Agent has authority to
accept on its behalf the terms of any reliance 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 (including any net asset letter in
connection with financial assistance procedures) 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.
15. DELEGATION OF POWERS
The Facility Agent may when it thinks necessary or desirable, delegate
to any person all or any duties, trusts, powers, authorities and
discretions vested in the Facility Agent hereunder or any other
document related hereto and any such delegation may be by power of
attorney or in such other manner as the Facility Agent may think fit
and may be made upon such terms and conditions (including power to
sub-delegate) and subject to such regulations as the Facility Agent
thinks fit and the Facility Agent shall not be responsible for any loss
incurred by reason of any misconduct or default on the part of any such
delegate or sub-delegate or be bound to supervise the proceedings or
acts of any such person PROVIDED always that the Facility Agent shall
obtain the prior consent by an Instructing Group (not to be
unreasonably withheld) to the identity of the delegate before
delegating any or all of its duties, trusts, powers, authorities and/or
discretions PROVIDED always that the Facility Agent shall be entitled
to exercise its power to delegate pursuant to this paragraph without
the prior consent of any of the Banks or an Instructing Group:
15.1 if such Bank or as the case may be an Instructing Group have not
responded to the Facility Agent`s notice of its intention to delegate
(which notice shall indicate the nature of the duties, trusts, powers,
authorities and/or discretions which it intends to delegate and the
identity of the delegate) within five Business Days of the serving
thereof; or
15.2 in the event that the Facility Agent believes that prompt or immediate
action for the protection and/or enforcement of the rights of the Banks
under any of the Finance Documents is necessary or appropriate, in
which event the Facility Agent shall be entitled to delegate without
the prior consent of any of the Banks on the basis that the Facility
Agent informs the Banks thereafter of the delegation, the identity of
the delegate and the action taken by the delegate.
15.3 Any delegate of the Facility Agent shall have the power to sub-delegate
on the basis only that the delegate remains personally liable in all
respects for the actions of the sub-delegate.
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SCHEDULE 11
GUARANTEE AND INDEMNITY
1. GUARANTEE UPON FIRST DEMAND (GARANTIE AUF ERSTES ANFORDERN)
Each Guarantor irrevocably and unconditionally guarantees to each
Finance Party the due and punctual observance and performance of all
the terms, conditions and covenants on the part of each Obligor (other
than itself) contained in any of the Finance Documents.
Each Guarantor agrees to pay from time to time on demand by the
Facility Agent (or by the Arranger or any Bank through the Facility
Agent) any and every sum or sums of money which each Obligor (other
than itself) is at any time liable to pay to any Finance Party under or
pursuant to any of the Finance Documents and which has become due and
payable but has not been paid at the time such demand is made.
2. INDEMNITY
Each Guarantor irrevocably and unconditionally agrees as a primary
obligation to indemnify each Finance Party from time to time on demand
by the Facility Agent from and against any loss incurred by any Finance
Party as a result of any of the obligations of an Obligor (other than
itself) under or pursuant to any of the Finance Documents being or
becoming void, voidable, unenforceable or ineffective as against such
Obligor for any reason whatsoever, whether or not known to any Finance
Party or any other person, the amount of such loss being the amount
which the person or persons suffering it would otherwise have been
entitled to recover from such Obligor.
3. ADDITIONAL SECURITY
The obligations of each Guarantor herein contained shall be in addition
to and independent of every other security which any Finance Party may
at any time hold in respect of any Obligor's obligations under the
Finance Documents.
4. CONTINUING OBLIGATIONS
The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied
by any intermediate payment or satisfaction of all or any of the
obligations of the Obligors under the Finance Documents and shall
continue in full force and effect until final payment in full of all
amounts owing by any Obligor thereunder and total satisfaction of all
the Obligors' actual and contingent obligations thereunder.
5. OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Guarantor herein contained nor the
rights, powers and remedies conferred in respect of each Guarantor upon
any Finance Party by any Finance Document or by law shall be
discharged, impaired or otherwise affected by:
5.1 the winding-up, dissolution, administration or re-organisation of any
Obligor or any other person or any change in its status, function,
control or ownership;
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5.2 any of the obligations of any Obligor or any other person hereunder or
under any other security taken in respect of any of its obligations
under any Finance Document being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
5.3 time or other indulgence being granted or agreed to be granted to any
Obligor in respect of its obligations under any Finance Document or
under any such other security;
5.4 any amendment to, or any variation, waiver or release of, any
obligation of any Obligor under any Finance Document or under any such
other security;
5.5 any failure to take, or fully to take, any security contemplated hereby
or otherwise agreed to be taken in respect of any Obligor's obligations
under any Finance Document;
5.6 any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security taken in
respect of any Obligor's obligations under any Finance Document; or
5.7 any other act, event or omission which, but for this Clause 5, might
operate to discharge, impair or otherwise affect any of the obligations
of each Guarantor contained in any Finance Document or any of the
rights, powers or remedies conferred upon any of the Finance Parties by
any Finance Document or by law.
6. SETTLEMENT CONDITIONAL
Any settlement or discharge between an Obligor and any of the Finance
Parties shall be conditional upon no security or payment to any Finance
Party by an Obligor or any other person on behalf of an Obligor 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, each Finance
Party shall be entitled to recover the value or amount of such security
or payment from such Obligor subsequently as if such settlement or
discharge had not occurred.
7. EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of any Guarantor by
this Agreement or by law:
7.1 to make any demand of any Obligor;
7.2 to take any action or obtain judgment in any court against any Obligor;
7.3 to make or file any claim or proof in a winding-up or dissolution of
any Obligor; or
7.4 to enforce or seek to enforce any other security taken in respect of
any of the obligations of any Obligor under any Finance Document.
8. DEFERRAL OF GUARANTOR'S RIGHTS
Each of the Guarantors agrees that, so long as any amounts are or may
be owed by an Obligor under any Finance Document or an Obligor is under
any actual or contingent obligations thereunder, it shall not exercise
any rights which it may at any time have by reason of performance by it
of its obligations thereunder:
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8.1 to be indemnified by an Obligor; and/or
8.2 to claim any contribution from any other guarantor of any Obligor's
obligations hereunder; and/or
8.3 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
any Finance Document or of any other security taken pursuant to, or in
connection with, any Finance Document by all or any of the Finance
Parties.
9. SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Bank by virtue of
Clause 1 (GUARANTEE UPON FIRST DEMAND) or Clause 2 (INDEMNITY) may, in
that Bank's discretion, in order to preserve the rights of the Bank to
prove for the full amount of all its claim be credited to a suspense or
impersonal account and may be held in such account for so long as such
Bank thinks fit pending the application from time to time (as such Bank
may think fit) of such moneys in or towards the payment and discharge
of any amounts owing by an Obligor to such Bank under any Finance
Document.
10. AMENDMENTS BINDING
Without prejudice to the other provisions of Clause 25 (GUARANTEE AND
INDEMNITY), each Guarantor hereby confirms that if the Parent and the
Finance Parties or any of them enter into any agreement or other
arrangement, including (without limitation) any amendment or supplement
to or restatement of this Agreement or the Finance Documents or any of
its or their provisions, howsoever fundamental, then the Parent's
execution of any such agreement or other arrangement, whether or not
expressly made or purportedly made on behalf of the Guarantors, shall
bind each of the Guarantors and the guarantee contained in Clause 25
(GUARANTEE AND INDEMNITY) shall continue in full force and effect
without the need to obtain any confirmation or acknowledgement from the
Guarantors or any of them that their guarantee continues in full force
and effect and applies to the Guarantor's liabilities under the Finance
Documents as amended, supplemented or restated in accordance with the
agreement of the Parent.
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SCHEDULE 12
MANDATORY COST FORMULAE
1. The Mandatory Costs Rate is an addition to the interest rate to
compensate Banks for the cost of compliance with (a) the requirements
of the Bank of England and/or the Financial Services Authority (or, in
either case, any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period or Term (or as soon as
possible thereafter) the Facility Agent shall calculate, as a
percentage rate, a rate (the "ADDITIONAL COST RATE") for each Bank, in
accordance with the paragraphs set out below. The Mandatory Costs Rate
will be calculated by the Facility Agent as a weighted average of the
Banks' Additional Cost Rates (weighted in proportion to the percentage
participation of each Bank in the relevant Advance) and will be
expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Bank lending from a Facility Office in
a Participating Member State will be the percentage notified by that
Bank to the Facility Agent as the cost of complying with the minimum
reserve requirements of the European Central Bank.
4. The Additional Cost Rate for any Bank lending from a Facility Office in
the United Kingdom will be calculated by the Facility Agent as follows:
(a) in relation to a sterling Advance:
AB + C(B-D) + E x 0.01
---------------------- per cent. per annum
100 - (A + C)
(b) in relation to an Advance in any currency other than sterling:
E x 0.01
-------- per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Bank 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 Costs Rate) payable for the relevant Interest
Period or Term on the Advance.
C is the percentage (if any) of Eligible Liabilities which that
Bank 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 Facility Agent on interest bearing Special
Deposits.
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E is the rate of charge payable by that Bank to the Financial
Services Authority pursuant to the Fees Regulations (but, for
this purpose, ignoring any minimum fee required pursuant to
the Fees Regulations) and expressed in pounds per
(pound)1,000,000 Of the Fee Base of that Bank.
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) "FEE REGULATIONS" means the Banking Supervision (Fees)
Regulations 1999 or such other law or regulation as may be in
force from time to time in respect of the payment of fees for
banking supervision; and
(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 Bank shall supply any information required by the Facility Agent
for the purpose of calculating its Additional Cost Rate. In particular,
but without limitation, each Bank shall supply the following
information in writing on or prior to the date on which it becomes a
Bank:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) any other information that the Facility Agent may reasonably
require for such purpose.
Each Bank shall promptly notify the Facility 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 Bank for the purpose of A, C
and E above shall be determined by the Facility Agent based upon the
information supplied to it pursuant to paragraph 7 above and on the
assumption that, unless a Bank notifies the Facility Agent to the
contrary, each Bank's obligations in relation to cash ratio deposits,
Special Deposits and the Fee 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 Facility Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Bank and shall be entitled to assume that the
information provided by any Bank pursuant to paragraphs 3 and 7 above
is true and correct in all respects.
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10. The Facility Agent shall distribute the additional amounts received as
a result of the Mandatory Cost to the Banks on the basis of the
Additional Cost Rate for each Bank based on the information provided by
each Bank pursuant to paragraphs 3 and 7 above.
11. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Mandatory Costs Rate, an Additional Cost
Rate or any amount payable to a Bank shall, in the absence of manifest
error, be conclusive and binding on all of the parties to this
Agreement.
The Facility Agent may from time to time, after consultation with the
Parent and the Banks, 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 the parties to this Agreement.
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SCHEDULE 13
INDEMNIFICATION BANK GUARANTEE
[TO BE PROVIDED]
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SCHEDULE 14
FORM OF LETTER FOR DETERMINATION OF
THE EFFECTIVE GLOBAL RATE (TAUX EFFECTIF GLOBAL)
From: [the Facility Agent]
To: [each French Borrower]
[date]
Dear Sirs,
We refer to the agreement (the "FACILITY AGREEMENT") dated [...] and
made between, INTER ALIA, [the French Borrower], a group of borrowers
and [...] as Facility Agent. Terms defined in the Facility Agreement
shall have the same meaning in this notice.
This is the letter referred to in Clause [4.4]/[7.4] (EFFECTIVE GLOBAL RATE
(TAUX EFFECTIF GLOBAL)) of the Facility Agreement.
The floating nature of the interest rate applicable to the Advances makes it
impossible to specify a TAUX EFFECTIF GLOBAL applicable for the duration of the
Facility Agreement.
However, in order to meet the requirements of article L. 313-1 ET SEQ. R. 313-1
and R. 313-2 of the French CODE DE LA CONSOMMATION and in accordance with the
provisions of Clause [4.4]/[7.4] of the Facility Agreement, we set out below an
indicative calculation of the TAUX EFFECTIF GLOBAL, based on the assumptions set
out in this letter.
Assumed [LIBOR/EURIBOR] and Margin:
[LIBOR/EURIBOR]: [TO BE COMPLETED BY THE FACILITY AGENT]
Margin: [TO BE COMPLETED BY THE FACILITY AGENT]
Based on the assumptions set out above (and including the Margin, all fees and
expenses relating to the Advances), the interest rate (TAUX DE PERIODE) for an
Interest Period (DUREE DE PERIODE) of [TO BE COMPLETED BY THE FACILITY AGENT]
months would be [TO BE COMPLETED BY THE FACILITY AGENT] % per annum and the
effective global rate (TAUX EFFECTIF GLOBAL ANNUEL) would be [TO BE COMPLETED BY
THE FACILITY AGENT]% per annum.
The calculations set out in this letter are for illustrative purposes only and
shall not bind the parties to the Facility Agreement. Nothing expressed or
implied in this letter constitutes any commitment on the part of any of the
Finance Parties.
-157-
Yours sincerely,
[ ]
For and on behalf
of [the Facility Agent]
-158-
SCHEDULE 15
FORM OF BORROWER TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT is made on the [o] day of [o], 20[o]
BETWEEN
(1) SANITEC OY on behalf of itself and as agent for and on behalf of the
Obligors (the "PARENT");
(2) [EXISTING BORROWER] (the "EXISTING BORROWER")
(3) [[BORROWER] (the "NEW BORROWER")]; and
(4) [FACILITY AGENT] on behalf of itself as facility agent and on behalf of
the Banks (the "FACILITY AGENT").
PREAMBLE:
(1) We refer to an agreement (as from time to time amended, varied or
supplemented, the "FACILITIES AGREEMENT") dated [o] whereby
multicurrency term and revolving loan facilities were made available to
[o] as original borrower by a group of banks, [o] acting as agent in
connection therewith.
(2) The Existing Borrower wishes to transfer the Existing Borrower's rights
and obligations in respect of a portion of [tranche (c) of the Term A2
Facility/the Term B1 Facility] pursuant to Clause 36.6 (EXCHANGE
BORROWERS) of the Facilities Agreement and the New Borrower agrees to
accept and assume such transfer.
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
Save as otherwise defined herein, terms defined in the Facilities
Agreement shall bear the same meaning herein. The terms "TRANSFERRED
AMOUNTS" and "EXCHANGE DATE" have the meanings given to them in
Schedule 1 hereto.
2. TRANSFER
2.1 The Existing Borrower (i) confirms that Schedule 1 hereto provides an
accurate summary of the Existing Borrower's outstanding [tranche (c)
Term A2 Advances/Term B1 Advances]1 under the Facilities Agreement and
(ii) requests the New Borrower to accept and procure the assumption and
transfer to the New Borrower of the Transferred Amounts (as set out in
Schedule 1 hereto) by signing and delivering this Transfer Agreement to
the Facility Agent at its address for the service of notices specified
in the Facilities Agreement.
----------
1 Delete as appropriate
-159-
2.2 The Existing Borrower hereby requests the Facility Agent to accept this
Transfer Agreement as being delivered to the Facility Agent pursuant to
and for the purposes of Clause 36.6 (EXCHANGE BORROWERS) of the
Facilities Agreement and, subject to the terms of the Facilities
Agreement, the Existing Borrower hereby assigns its rights under the
Facilities Agreement and transfers its obligations thereunder in each
case in respect of the Transferred Amounts to the New Borrower, such
assignment and transfer to take effect on the Exchange Date or on such
later date as may be determined in accordance with the terms of the
Facilities Agreement.
2.3 The New Borrower hereby accepts the assignment of rights and the
assumption of obligations pursuant to clause 2.2 of this Transfer
Agreement and undertakes with the Existing Borrower and each of the
other parties to the Facilities Agreement that it will perform in
accordance with their terms those obligations under the Facilities
Agreement which will be assumed by it after delivery of this Transfer
Agreement to the Facility Agent and satisfaction of the conditions (if
any) subject to which this Transfer Agreement is expressed to take
effect.
2.4 The Obligors (represented by the Parent) which have granted Security
prior to the Exchange Date hereby approve in advance the assumption by
the New Borrower of the obligations secured by that Security and,
waiving section 418 of the German Civil Code, hereby agree that such
Security shall not be affected by any transfer or assumption of
obligations secured by such Security to the New Borrower.
3. REPRESENTATIONS
Each of the Parent, the Existing Borrower and the New Borrower hereby
represents and warrants in respect of itself (and in addition the
Parent makes the representations in respect of each member of the
Group) as if the representations set out in Clause 20 (REPRESENTATIONS)
(other than the representations not required to be repeated by Clause
20.37 (REPETITION OF REPRESENTATIONS)) of the Facilities Agreement were
set out in full in this Agreement.
[In the case of a transfer of a Term Advance (or part of a Term
Advance) to be made to a New Borrower as a result of the Existing
Borrower having excess cash which it wishes to indirectly push down to
the New Borrower:] The Existing Borrower represents and warrants that
on the Exchange Date it will have sufficient cash such that it would be
able on the Exchange Date to make a prepayment of its Term Outstandings
in an amount at least equal to the amount of the Outstandings to be
transferred to the New Borrower.]
4. GUARANTEE AND INDEMNITY
4.1 The Parent confirms for itself and on behalf of the other Obligors,
that the guarantee and indemnity obligations pursuant to Clause 25
(GUARANTEE AND INDEMNITY) of the Facilities Agreement will apply to all
the obligations of the New Borrower under the Finance Documents in all
respects in accordance with the terms of the Facilities Agreement as if
the New Borrower had originally drawn the Transferred Amounts.
-160-
4.2 The Parent confirms that no Event of Default or Potential Event of
Default is continuing or would occur as a result of the New Borrower
assuming the rights, benefits and obligations in respect of the
Transferred Amounts set out in Schedule 1 hereto.
5. COUNTERPARTS
This Agreement may be signed in counterparts, all of which taken
together shall constitute a single agreement.
6. GOVERNING LAW AND JURISDICTION
6.1 This Agreement and the rights, benefits and obligations of the parties
hereunder shall be governed by, and construed in accordance with,
German law.
6.2 The place of jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement shall be Munich.
6.3 This Clause 6 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 6.2 above, it does not prevent any
Finance Party from taking proceedings against any of the Obligors in
any other court of competent jurisdiction nor shall the taking of
proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction (whether concurrently or not) if
and to the extent permitted by applicable law.
AS WITNESS the hands of the duly authorised representative of the parties hereto
the day and year first before written.
By: __________________________ By: ________________________
Existing Borrower New Borrower
By: __________________________ By: ________________________
Facility Agent The Parent
-161-
SCHEDULE 1
Existing Borrower's outstanding [tranche (c) Term A2 Advances/Term B1
Advances]1:
Amount of Advance Interest Period Transferred Amount
Exchange Date:
----------
1 Delete as appropriate
-162-
ANNEX A
FORMAT OF QUARTERLY STATEMENTS
-163-
ANNEX B
FORMAT OF MONTHLY MANAGEMENT STATEMENTS
-164-
SIGNATURES
THE PARENT AND ORIGINAL BORROWER
The Parent hereby represents that the transactionS referred to in this Agreement
will be undertaken on its own account.
FIN NEWCO I
By: [▇▇. ▇▇▇▇ ▇▇▇▇▇ by power of attorney]
Address: c/o Dittmar & Indrenius
Pohjoisesplanadi 25 A
Fin-00100 Helsinki
Tel:
Fax: + ▇▇▇ (▇) ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
THE ORIGINAL GUARANTORS
FIN NEWCO I
By: [▇▇. ▇▇▇▇ ▇▇▇▇▇ by power of attorney]
Address: c/o Dittmar & Indrenius
Pohjoisesplanadi 25 A
Fin-00100 Helsinki
Tel:
Fax: + ▇▇▇ (▇) ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
FIN NEWCO II
By: [Dr. Jens Moraht by power of attorney]
Address: c/o Dittmar & Indrenius
Pohjoisesplanadi 25 A
Fin-00100 Helsinki
Tel:
Fax: + ▇▇▇ (▇) ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
-1-
ARRANGER AND UNDERWRITER
BAYERISCHE HYPO- UND VEREINSBANK AG
By: [▇▇▇▇▇ ▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇]
Address: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel:
Fax:
Attention:
THE FACILITY AGENT
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
By: [▇▇▇▇▇ ▇▇▇▇ by power of attorney / ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ by power of attorney]
Address: London Branch
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/8485
Fax: 00 44 207 573 8468
Attention: Trix Brunschweiler/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THE SECURITY AGENT
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
By: [▇▇▇▇▇ ▇▇▇▇ by power of attorney / ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ by power of attorney]
Address: London Branch
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/8485
Fax: 00 44 207 573 8468
Attention: Trix Brunschweiler/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-2-
THE FRONTING BANK
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
By: [▇▇▇▇▇ ▇▇▇▇ by power of attorney / ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ by power of attorney]
Address: London Branch
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/8485
Fax: 00 44 207 573 8468
Attention: Trix Brunschweiler/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-3-
THE TERM BANKS
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
By: [▇▇▇▇▇ ▇▇▇▇ by power of attorney / ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ by power of attorney]
Address: London Branch
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/8485
Fax: 00 44 207 573 8468
Attention: Trix Brunschweiler/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
MIZUHO FINANCIAL GROUP (THE FUJI BANK, LIMITED)
(as per transfer certificate dated 01 October 2001)
By:
Address: London ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: 00 44 207 847 2039
Attention: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ BANK PLC
(as per transfer certificate dated 01 October 2001)
By:
Address: Corporate Division
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇-▇
▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel: ▇▇ ▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇
Fax: 00 358 9 165 52797
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-4-
THE ROYAL BANK OF SCOTLAND PLC, NIEDERLASSUNG FRANKFURT
(as per transfer certificate dated 01 October 2001)
By:
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
Tel: ▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: 00 49 69 1700 6279
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, L.P.
(as per transfer certificate dated 01 October 2001)
By:
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: 00 44 207 552 7070
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION, NEW YORK
(as per transfer certificate dated 01 October 2001)
By:
Address: ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ / 6998
Fax: ▇▇▇ ▇▇▇ ▇▇▇ 1719
Attention: Eve Larn/▇▇▇▇ ▇▇▇▇▇▇▇▇
-5-
THE REVOLVING BANKS
BAYERISCHE HYPO- UND VEREINSBANK AG, LONDON BRANCH
(as per transfer certificate dated 01 October 2001)
By: [▇▇▇▇▇ ▇▇▇▇ by power of attorney / ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ by power of attorney]
Address: London Branch
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/8485
Fax: 00 44 207 573 8468
Attention: Trix Brunschweiler/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION, NEW YORK
(as per transfer certificate dated 01 October 2001)
By:
Address: ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ / 6998
Fax: ▇▇▇ ▇▇▇ ▇▇▇ 1719
Attention: Eve Larn/▇▇▇▇ ▇▇▇▇▇▇▇▇
MIZUHO FINANCIAL GROUP (THE FUJI BANK, LIMITED)
(as per transfer certificate dated 01 October 2001)
By:
Address: London ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: 00 44 207 847 2039
Attention: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ BANK PLC
(as per transfer certificate dated 01 October 2001)
-6-
By:
Address: Corporate Division
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇-▇
▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel: ▇▇ ▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇
Fax: 00 358 9 165 52797
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE ROYAL BANK OF SCOTLAND PLC, NIEDERLASSUNG FRANKFURT
(as per transfer certificate dated 01 October 2001)
By:
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
Tel: ▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: 00 49 69 1700 6279
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, L.P.
(as per transfer certificate dated 01 October 2001)
By:
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: 00 44 207 552 7070
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-7-