Exhibit 10.3


 


EXECUTION VERSION


 


 


 


AMENDMENT AND RESTATEMENT
AGREEMENT


 


 


dated 29 August 2008


 


 


for


 


deukalion
einhundertvierundzwanzigste vermÖgensverwaltungs - gmbh


 


 


arranged by


merchant
banking, skandinaviska enskilda banken ab (publ) and nordea bank finland plC


 


 


with


 


 


merchant banking,
skandinaviska enskilda banken ab (publ)


acting as Agent


 


 


RELATING TO A FACILITY
AGREEMENT DATED


 


17 June 2008


 


 





 


Ref: NHAX/GEM


 


Linklaters LLP


 

















 


CONTENTS


 


	
  CLAUSE

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions
  and interpretation

  	
   

  	
  1

  
	
  2.

  	
  Conditions
  precedent

  	
   

  	
  2

  
	
  3.

  	
  Representations

  	
   

  	
  2

  
	
  4.

  	
  Amendment

  	
   

  	
  2

  
	
  5.

  	
  Transaction
  expenses

  	
   

  	
  2

  
	
  6.

  	
  Miscellaneous

  	
   

  	
  2

  
	
  7.

  	
  Governing
  law

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  THE SCHEDULES

  
	
   

  
	
   

  
	
  SCHEDULE

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1 The Original Obligors

  	
   

  	
  4

  
	
  SCHEDULE 2 Conditions precedent

  	
   

  	
  5

  
	
  SCHEDULE 3 Form of Amended Agreement

  	
   

  	
  7

  
						



 

















 


THIS AGREEMENT is dated                August 2008 and made
between:


 


(1)                            DEUKALION EINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS - GMBH, a
limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung) and registered with
the commercial register (Handelsregister)
of the local court (Amtsgericht) of
Frankfurt am Main under the registration number HR B8 05 60 (the “Company”);


 


(2)                            THE SUBSIDIARIES of the Company listed in Schedule 1 as original
borrowers (together with the Company, the “Original Borrowers”);


 


(3)                            THE SUBSIDIARIES of the Company listed in Schedule 1 as original
guarantors (together with the Company, the “Original
Guarantors”);


 


(4)                            MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) as agent of
the other Finance Parties (the “Agent”).


 


IT IS AGREED as follows:


 


1.                                 Definitions and interpretation


 


1.1                           Definitions


 


In this Agreement:


 


“Amended Agreement” means the Original
Facility Agreement, as amended and restated in the form set out in Schedule 3 (Form of Amended Agreement).


 


“Effective Date” means the date of this
Agreement.


 


“Original Facility Agreement” means the
€330,000,000 facility agreement dated 17 June 2008 between the Company,
certain Subsidiaries of the Company as borrowers and guarantors, the Agent, the
Arranger named in it and the Lenders named in it.


 


“Party”
means a party to this Agreement.


 


1.2                           Incorporation of defined terms


 


(a)                            Unless a contrary indication appears, terms defined in
the Original Facility Agreement have the same meaning in this Agreement.


 


(b)                           The principles of construction set out in the Original
Facility Agreement shall have effect as if set out in this Agreement.


 


1.3                           Third Party Rights


 


A person who is not a
Party has no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce or to enjoy the benefit of any term of this Agreement.


 


1.4                           Designation


 


In accordance with
the Original Facility Agreement, each of the Company and the Agent designate
this Agreement as a Finance Document.


 


1

















 


2.                                 Conditions SUBSEQUENT


 


The Company shall
deliver to the Agent all the documents and other evidence listed in Schedule 2
(Conditions subsequent) in form
and substance satisfactory to the Agent by no later than the initial
Utilisation Date. Any failure by the Company to fulfil these conditions shall
be a breach of the Amended Agreement.


 


3.                                 Representations


 


Each Obligor makes
the Repeating Representations, and the representations and warranties in Clause
22.5 (Validity and admissibility in evidence),
22.7 (Deduction of Tax) and 22.8
(No filing or stamp taxes) of the
Original Facility Agreement, by reference to the facts and circumstances then
existing:


 


(a)                                   on the date of this Agreement; and


 


(b)                                  on the Effective Date,


 


but as if references
in Clause 22 (Representations) of
the Original Facility Agreement to “the Finance Documents” include this
Agreement and, on the Effective Date, the Amended Agreement.


 


4.                                 Amendment


 


4.1                           Amendment


 


With effect from the
Effective Date the Original Facility Agreement shall be amended and restated in
the form set out in Schedule 3 (Form of
Amended Agreement).


 


4.2                           Continuing obligations


 


The provisions of the
Original Facility Agreement and the other Finance Documents (including the
guarantee and indemnity of each Guarantor) shall, save as amended by this
Agreement, continue in full force and effect.


 


5.                                 Transaction expenses


 


The Company shall
within three Business Days of demand reimburse the Agent for the amount of all
costs and expenses (including legal fees) reasonably incurred by the Agent in
connection with the negotiation, preparation, printing and execution of this
Agreement and any other documents referred to in this Agreement.


 


6.                                 Miscellaneous


 


6.1                           Incorporation of terms


 


The provisions of
Clause 35 (Notices) and Clause 42
(Enforcement) of the Original
Facility 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”
are references to this Agreement.


 


6.2                           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.


 


2

















 


7.                                 Governing law


 


This Agreement is
governed by English law.


 


This Agreement has been
entered into on the date stated at the beginning of this Agreement.


 


3

















 


SCHEDULE 1


 


THE ORIGINAL OBLIGORS


 


	
  Name of Original Borrower

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  SACHTLEBEN CHEMIE GMBH

  	
   

  	
  HR B 1 96 69

  
	
   

  	
   

  	
   

  
	
  FINNISH HOLDCO

  	
   

  	
  2196924-0

  
	
   

  	
   

  	
   

  
	
  KEMIRA PIGMENTS OY

  	
   

  	
  0948159-2

  



 


	
  Name of Original Guarantor

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  SACHTLEBEN CHEMIE GMBH

  	
   

  	
  HR B 1 96 69

  
	
   

  	
   

  	
   

  
	
  FINNISH HOLDCO

  	
   

  	
  2196924-0

  
	
   

  	
   

  	
   

  
	
  KEMIRA PIGMENTS OY

  	
   

  	
  0948159-2

  



 


4

















 


SCHEDULE 2


 


CONDITIONS SUBSEQUENT


 


1.                                 Obligors


 


(a)                            A certified (beglaubigt)
copy of the constitutional documents (Satzung
or Gesellschaftsvertrag) of each Obligor incorporated in Germany.


 


(b)                           A certified copy of the constitutional documents of
each Obligor incorporated in Finland, being a copy of an extract from the
Finnish Trade Register and articles of association of recent date not dated
earlier than 14 days prior to the Original Facility Agreement.


 


(c)                            A certified (beglaubigt) excerpt from the commercial
register (Handelsregister) of each Obligor incorporated in Germany of recent date not dated earlier than
14 days prior to the Original
Facility Agreement.


 


(d)                           A copy of a resolution of the shareholders of each
Obligor incorporated in Germany:


 


(i)                                      approving the terms of, and the transactions
contemplated by, this Agreement and resolving that it execute this Agreement;
and


 


(ii)                                   instructing the managing director(s) of
each Obligor to execute this Agreement.


 


(e)                            A copy of a resolution of the board of directors of
each Obligor incorporated in a jurisdiction other than Germany:


 


(i)                                      approving the terms of, and the transactions
contemplated by, this Agreement and resolving that it execute this Agreement;
and


 


(ii)                                   authorising a specified person or persons to execute
this Agreement on its behalf.


 


(f)                              A copy of a resolution signed by all the holders of
the issued shares in each Guarantor incorporated in a jurisdiction other than
Germany, approving the terms of, and the transactions contemplated by, this
Agreement.


 


(g)                           A specimen of the signature of each person authorised
by the resolutions referred to in paragraphs (d) and (e) above.


 


(h)                           A certificate of an authorised signatory of the
relevant Obligor certifying that each copy document relating to it specified in
this Schedule 2 is correct, complete and in full force and effect as at a date
no earlier than the initial Utilisation Date.


 


2.                                 Legal opinions


 


(a)                            A legal opinion of Linklaters LLP, legal advisers to
the Agent in England, substantially in the form distributed to the Lenders
prior to signing this Agreement.


 


(b)                           A legal opinion of Clifford Chance LLP, legal advisers
to the Obligors in Germany, on due incorporation and capacity of the Obligors,
incorporated in Germany, substantially in the form distributed to the Lenders
prior to signing this Agreement.


 


(c)                            A legal opinion of Hannes Snellman Attorneys at Law
Ltd, legal advisers to the Arranger and the Agent in Finland, substantially in
the form distributed to the Lenders prior to signing this Agreement.


 


5

















 


3.                                 Other documents and evidence


 


(a)                            A copy of any other Authorisation or other document,
opinion or assurance which the Agent considers to be necessary or desirable (if
it has notified the Company accordingly) in connection with the entry into and
performance of the transaction contemplated by this Agreement or for the
validity and enforceability of this Agreement.


 


(b)                           Evidence that the costs and expenses then due from the
Company pursuant to Clause 5 (Transaction
expenses) have been paid.


 


6

















 


SCHEDULE 3


 


FORM OF AMENDED AGREEMENT


 


7
















 


FINAL VERSION


 


 


€330,000,000


 


FACILITY AGREEMENT


 


Dated 17 June 2008

as amended and restated on    August 2008


 


 


for


 


 


DEUKALION
EINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS - GmbH


 


 


arranged by


MERCHANT
BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) AND NORDEA BANK FINLAND PLC


 


 


with


 


 


MERCHANT
BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


acting as Agent


 


and


 


MERCHANT
BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


acting as Security Agent


 


and


 


MERCHANT
BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


acting as Issuing Bank


 





 


Ref: NHAX/GEM


 


Linklaters LLP


 


8

















 


CONTENTS


 


	
  CLAUSE

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  SECTION 1

  	
   

  	
   

  
	
  INTERPRETATION

  	
   

  	
   

  
	
  1.

  	
  Definitions and
  interpretation

  	
   

  	
  1

  
	
  SECTION 2

  	
   

  	
   

  
	
  The Facilities

  	
   

  	
   

  
	
  2.

  	
  The Facilities

  	
   

  	
  31

  
	
  3.

  	
  Purpose

  	
   

  	
  31

  
	
  4.

  	
  Conditions of Utilisation

  	
   

  	
  31

  
	
  SECTION 3

  	
   

  	
   

  
	
  UTILISATION

  	
   

  	
   

  
	
  5.

  	
  Utilisation - Loans

  	
   

  	
  34

  
	
  6.

  	
  Utilisation - Letters of
  Credit and Bank Guarantees

  	
   

  	
  35

  
	
  7.

  	
  Letters of Credit and Bank
  Guarantees

  	
   

  	
  38

  
	
  8.

  	
  Optional Currencies

  	
   

  	
  42

  
	
  9.

  	
  Ancillary Facilities

  	
   

  	
  43

  
	
  SECTION 4

  	
   

  	
   

  
	
  REPAYMENT, PREPAYMENT AND CANCELLATION

  	
   

  	
   

  
	
  10.

  	
  Repayment

  	
   

  	
  47

  
	
  11.

  	
  Prepayment and cancellation

  	
   

  	
  48

  
	
  SECTION 5

  	
   

  	
   

  
	
  COSTS OF UTILISATION

  	
   

  	
   

  
	
  12.

  	
  Interest

  	
   

  	
  55

  
	
  13.

  	
  Interest Periods

  	
   

  	
  57

  
	
  14.

  	
  Changes to the calculation
  of interest

  	
   

  	
  58

  
	
  15.

  	
  Fees

  	
   

  	
  59

  
	
  SECTION 6

  	
   

  	
   

  
	
  ADDITIONAL PAYMENT OBLIGATIONS

  	
   

  	
   

  
	
  16.

  	
  Tax gross up and indemnities

  	
   

  	
  61

  
	
  17.

  	
  Increased costs

  	
   

  	
  65

  
	
  18.

  	
  Other indemnities

  	
   

  	
  66

  
	
  19.

  	
  Mitigation by the Lenders

  	
   

  	
  67

  
	
  20.

  	
  Costs and expenses

  	
   

  	
  67

  
	
  SECTION 7

  	
   

  	
   

  
	
  guarantee

  	
   

  	
   

  
	
  21.

  	
  Guarantee and indemnity

  	
   

  	
  69

  
	
  SECTION 8

  	
   

  	
   

  
	
  REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

  	
   

  	
   

  
	
  22.

  	
  Representations

  	
   

  	
  75

  
	
  23.

  	
  Information undertakings

  	
   

  	
  79

  
	
  24.

  	
  Financial covenants

  	
   

  	
  82

  
	
  25.

  	
  General undertakings

  	
   

  	
  88

  
	
  26.

  	
  Events of Default

  	
   

  	
  93

  



 


9

















 


	
  SECTION 9

  	
   

  	
   

  
	
  CHANGES TO PARTIES

  	
   

  	
   

  
	
  27.

  	
  Changes to the Lenders

  	
   

  	
  98

  
	
  28.

  	
  Changes to the Obligors

  	
   

  	
  101

  
	
  SECTION 10

  	
   

  	
   

  
	
  THE FINANCE PARTIES

  	
   

  	
   

  
	
  29.

  	
  Role of the Agent, the
  Security Agent and the Arranger

  	
   

  	
  105

  
	
  30.

  	
  Parallel Debt

  	
   

  	
  110

  
	
  31.

  	
  Conduct of business by the
  Finance Parties

  	
   

  	
  111

  
	
  32.

  	
  Sharing among the Finance
  Parties

  	
   

  	
  111

  
	
  SECTION 11

  	
   

  	
   

  
	
  ADMINISTRATION

  	
   

  	
   

  
	
  33.

  	
  Payment mechanics

  	
   

  	
  114

  
	
  34.

  	
  Set-off

  	
   

  	
  117

  
	
  35.

  	
  Notices

  	
   

  	
  117

  
	
  36.

  	
  Calculations and
  certificates

  	
   

  	
  119

  
	
  37.

  	
  Partial invalidity

  	
   

  	
  119

  
	
  38.

  	
  Remedies and waivers

  	
   

  	
  119

  
	
  39.

  	
  Amendments and waivers

  	
   

  	
  119

  
	
  40.

  	
  Counterparts

  	
   

  	
  120

  
	
  SECTION 12

  	
   

  	
   

  
	
  GOVERNING LAW AND ENFORCEMENT

  	
   

  	
   

  
	
  41.

  	
  Governing law

  	
   

  	
  121

  
	
  42.

  	
  Enforcement

  	
   

  	
  121

  



 


THE SCHEDULES


 


	
  SCHEDULE

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  Schedule 1 The Original Parties

  	
   

  	
  122

  
	
  Schedule 2 Conditions precedent

  	
   

  	
  124

  
	
  Schedule 3 Requests

  	
   

  	
  129

  
	
  Schedule 4 Mandatory Cost formulae

  	
   

  	
  133

  
	
  Schedule 5 Form of Transfer Certificate

  	
   

  	
  136

  
	
  Schedule 6 Form of Accession Letter

  	
   

  	
  138

  
	
  Schedule 7 Security Agency Provisions

  	
   

  	
  139

  
	
  Schedule 8 Form of Compliance
  Certificate

  	
   

  	
  144

  
	
  Schedule 9 Existing Security

  	
   

  	
  146

  
	
  Schedule 10 Timetables

  	
   

  	
  148

  
	
  Schedule 11 Form of Letter of Credit

  	
   

  	
  151

  
	
  Schedule 12 Form of Bank Guarantee

  	
   

  	
  155

  
	
  Schedule
  13 Form of Resignation Letter

  	
   

  	
  158

  



 


10

















 


THIS AGREEMENT is dated 17 June 2008 as
amended and restated on August 2008 and made between:


 


(5)         DEUKALION EINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS - GMBH, a
limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung) and registered with
the commercial register (Handelsregister)
of the local court (Amtsgericht) of
Frankfurt am Main under the registration number HR B8 05 60 (the “Company”);


 


(6)         THE SUBSIDIARIES of the Company listed in Part I of Schedule 4 as
original borrowers (together with the Company, the “Original Borrowers”);


 


(7)         THE SUBSIDIARIES of the Company listed in Part I of Schedule 4 as
original guarantors (together with the Company, the “Original Guarantors”);


 


(8)         MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) and NORDEA
BANK FINLAND PLC as mandated lead arrangers (whether acting individually or
together the “Arranger”);


 


(9)         THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 4 as
lenders (the “Original Lenders”);


 


(10)       MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) as agent of
the other Finance Parties (the “Agent”);


 


(11)       MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) as security
agent for the Finance Parties (the “Security
Agent”); and


 


(12)       MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) as issuer of
letters of credit and bank guarantees (the “Issuing
Bank”).


 


IT IS AGREED as follows:


 


SECTION 1


 


INTERPRETATION


 


8.           Definitions
and interpretation


 


8.1        Definitions


 


In this Agreement:


 


“Acceleration Date” means
the date (if any) on which the Agent gives a notice under Clause 26.16 (Acceleration).


 


“Accession
Letter” means a document substantially in the form set out in
Schedule 9 (Form of Accession Letter).


 


“Additional
Borrower” means a company which becomes an Additional Borrower in
accordance with Clause 35 (Changes to the
Obligors).


 


“Additional
Cost Rate” has the meaning given to it in Schedule 7 (Mandatory Cost  formulae).


 


1

















 


“Additional
Guarantor” means a company which becomes an Additional Guarantor in
accordance with Clause 35 (Changes to the
Obligors).


 


“Additional
Obligor” means an Additional Borrower or an Additional Guarantor.


 


“Affiliate”
means, in relation to any person, a Subsidiary of that person or a Holding
Company of that person or any other Subsidiary of that Holding Company.


 


“Agent’s Spot
Rate of Exchange” means the Agent’s spot rate of exchange for the
purchase of the relevant currency with the Base Currency in the London foreign
exchange market at or about 11:00 a.m. on a particular day.


 


“Ancillary Commitment”
means, in relation to an Ancillary Lender and an Ancillary Facility, the
maximum Base Currency Amount from time to time agreed (whether or not subject
to satisfaction of conditions precedent and whether or not utilised) to be made
available by that Ancillary Lender under an Ancillary Facility and authorised
under Clause 9 (Ancillary Facilities),
to the extent not cancelled or reduced under this Agreement.


 


“Ancillary Facility” means
an ancillary facility made available by an Ancillary Lender in accordance with
Clause 9 (Ancillary Facilities).


 


“Ancillary Facility Document”
means a document setting out the terms of an Ancillary Facility.


 


“Ancillary Facility Request”
means a notice substantially in the form set out in Part IV of Schedule 3
(Requests).


 


“Ancillary Lender” means a
Lender which agrees to make available an Ancillary Facility in accordance with
Clause 16 (Ancillary Facilities).


 


“Ancillary Outstandings”
means, at any time and in relation to an Ancillary Facility, the aggregate
(calculated in the Base Currency) of the following amounts outstanding at that
time under that Ancillary Facility:


 


(a)           the maximum potential
liability under all guarantees, bonds and letters of credit issued under that
Ancillary Facility; and


 


(b)           in relation to any other
Ancillary Facility, such other amount as fairly represents the aggregate
exposure of the Ancillary Lender under that Ancillary Facility,


 


in each case determined by the relevant Ancillary Lender in accordance
with its usual practice at that time for calculating its exposure under similar
facilities or transactions (acting reasonably and after consultation with the
Agent).


 


For the purposes of this definition:


 


(i)             in relation to any
utilisation denominated in the Base Currency, the amount of that utilisation
(determined as described in paragraphs (a) and (b) above) shall be
used; and


 


(ii)            in relation to any
utilisation not denominated in the Base Currency, the equivalent (calculated as
specified in the relevant Ancillary Facility Document or, if not so specified,
as the relevant Ancillary Lender may specify, in each case in accordance with
its usual practice at that time for calculating that equivalent (acting
reasonably and after 


 


2

















 


consultation with the
Agent)) in the Base Currency of the amount of that utilisation (determined as
described in paragraphs (a) and (b) above) shall be used.


 


“Agreed Form”
means agreed between the Company and the Agent or otherwise in form and
substance satisfactory to the Agent (acting reasonably).


 


“Applicable Accounting
Principles” means GAAP and, in the case of the Company, practices
and financial reference periods used in the preparation of the Base Case.


 


“Authorisation”
means an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration.


 


“Availability Period” means:


 


(a)           in relation to Facility A, the period from and including the date of
this Agreement to and including the date which is 180 days after the date of
this Agreement; and


 


(b)           in relation to Facility B, the period from and including the date of
this Agreement to and including the Business Day one month before the
Termination Date.


 


“Available Ancillary Commitment”
means, in relation to an Ancillary Facility, an Ancillary Lender’s Ancillary
Commitment less the Ancillary Outstandings in relation to that Ancillary
Facility.


 


“Available Commitment” means, in relation to
a Facility, a Lender’s Commitment under that Facility minus:


 


(a)           the Base Currency Amount of its participation in any outstanding
Utilisations under that Facility;


 


(b)           in relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Utilisations that are due to be made under that Facility
on or before the proposed Utilisation Date; and


 


(c)            in the case of Facility B only, the Base Currency Amount of its
Ancillary Commitment in relation to any Ancillary Facility that is due to be
made available on or before the proposed Utilisation Date of Facility B,


 


other than, in relation to any proposed
Utilisation under Facility B only, that Lender’s participation in any Facility
B Utilisations that are due to be repaid or prepaid on or before the proposed
Utilisation Date.


 


“Available
Facility” means, in relation to a Facility, the aggregate for the
time being of each Lender’s Available Commitment in respect of that Facility.


 


“Bank Guarantee”
means a bank guarantee, substantially in the form set out in Schedule 12 (Form of Bank Guarantee) or in any other form requested
by a Borrower and agreed by the Agent and the Issuing Bank.


 


“Base Case”
means the economic projections and assumptions in relation to the Group
prepared by the Company.


 


“Base
Currency” or “€” means euros.


 


3

















 


“Base
Currency Amount” means:


 


(a)           in relation to a Utilisation, the amount specified in
the Utilisation Request delivered by a Borrower for that Utilisation (or, if
the amount requested is not denominated in the Base Currency, that amount
converted into the Base Currency at the Agent’s Spot Rate of Exchange on the
date which is three Business Days before the Utilisation Date or, if later, on
the date the Agent receives the Utilisation Request and, in the case of a
Letter of Credit or Bank Guarantee, as adjusted under Clause 13.8 (Revaluation of Letters of Credit and Bank Guarantees));


 


(b)           in relation to an Ancillary
Commitment, the amount specified in the notice delivered to the Agent by the
Company pursuant to paragraph (a) of Clause 16.3 (Request for Ancillary Facilities),


 


adjusted to reflect any repayment, prepayment,
consolidation or division of the Utilisation or (as the case may be)
cancellation or reduction of the Ancillary Commitment.


 


“Borrower”
means an Original Borrower or an Additional Borrower.


 


“Break Costs”
means the amount (if any) by which:


 


(a)           the interest (excluding Mandatory Costs and the Margin) which a Lender
should have received for the period from the date of receipt of all or any part
of its participation in a Loan or Unpaid Sum to the last day of the current
Interest Period in respect of that Loan or Unpaid Sum, had the principal amount
or Unpaid Sum received been paid on the last day of that Interest Period;


 


exceeds:


 


(b)           the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on deposit
with a leading bank in the Relevant Interbank Market for a period starting on
the Business Day following receipt or recovery and ending on the last day of
the current Interest Period.


 


“Business Day”
means a day (other than a Saturday or Sunday) on which banks are open for
general business in Frankfurt, Helsinki, London and Stockholm, and (in relation
to any date for payment in or purchase of euro) which is a TARGET Day and (in
relation to any date for payment or purchase of a currency other than euro) the
principal financial centre of the country of that currency.


 


“Capital Expenditure”
has the meaning given to it in Clause 31 (Financial covenants).


 


“Cash” means any credit
balance on any deposit, savings, current or other account, and any cash in
hand, of any member of the Group which is:


 


(a)           freely withdrawable on demand;


 


(b)           not subject to any Security or Quasi Security (other
than pursuant to any Security Document or any Permitted Security constituted by
either a netting or set-off arrangement entered into by members of the Group in
the ordinary course of their banking arrangements or a lien arising under the
general terms and conditions of banks 


 


4

















 


or
Sparkassen (Allgemeine Geschäftsbedingungen der Banken oder
Sparkassen) with whom any member of the Group maintains its banking
arrangements);


 


(c)            denominated and payable in freely transferable and
freely convertible currency; and


 


(d)           capable of being remitted to an Obligor.


 


“Cash Equivalent Investments” means:


 


(a)           securities with a maturity of less than 12 months from
the date of calculation issued or fully guaranteed or fully insured by the
Government of the United States or any member state of the European Union or by
an instrumentality or agency of any of them having an equivalent credit rating;


 


(b)           commercial paper or other debt securities issued by an
issuer rated at least A-1 by Standard & Poor’s Ratings Group or P-1 by
Moody’s Investors Service, Inc. and with a maturity of less than 12
months; and


 


(c)            certificates of deposit or time deposits of any
commercial bank (which has outstanding debt securities rated as referred to in
paragraph (b) above) and with a maturity of less than three months,


 


in each case not subject to any Security or Quasi Security (other than
pursuant to any Security Document or any Permitted Security constituted by a lien arising under the general terms and conditions of
banks or Sparkassen (Allgemeine
Geschäftsbedingungen der Banken oder Sparkassen) with whom any
member of the Group maintains its banking arrangements), denominated and payable in freely transferable and freely convertible
currency and the proceeds of which are capable of being remitted to an Obligor.


 


“Cash Generated for
Financing” has the meaning given to it in Clause 31 (Financial covenants).


 


“Clean Down Period”
has the meaning given to it in Clause 18.15 (Clean Down).


 


“Commencement Date”
has the meaning given to it in Clause 16.3 (Request for Ancillary
Facilities).


 


“Commitment”
means a Facility A Commitment, Facility B Commitment or Ancillary Commitment.


 


“Compliance
Certificate” means a certificate substantially in the form set out
in Schedule 11 (Form of Compliance
Certificate).


 


“Confidentiality
Undertaking” means a confidentiality undertaking substantially in a
recommended form of the LMA or in any other form agreed between the Company and
the Agent.


 


“Current Assets”
has the meaning given to it in Clause 31 (Financial covenants).


 


“Current Liabilities”
has the meaning given to it in Clause 31 (Financial covenants).


 


“Debt” has the
meaning given to it in Clause 31 (Financial covenants).


 


“Debt Service”
has the meaning given to it in Clause 31 (Financial covenants).


 


5

















 


“Default”
means an Event of Default or any event or circumstance specified in Clause 33 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing) be an
Event of Default.


 


“Disruption
Event” means either or both of:


 


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


 


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


 


(i)                                  from performing its payment obligations under the Finance Documents; or


 


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


 


and which (in either such case) is not caused
by, and is beyond the control of, the Party whose operations are disrupted.


 


“EBITDA”
has the meaning given to it in Clause 31 (Financial
covenants).


 


“Environment”
means living organisms including the ecological systems of which they form part
and the following media:


 


(a)                                  air (including air within natural or man-made
structures, whether above or below ground);


 


(b)                                  water (including territorial, coastal and inland
waters, water under or within land and water in drains and sewers); and


 


(c)                                   land (including land under water).


 


“Environmental Law” means all laws and
regulations of any relevant jurisdiction which:


 


(a)                                  relate to the protection of, and/or prevention of harm
or damage to, the Environment;


 


(b)                                  provide remedies or compensation for harm or damage to
the Environment; or


 


(c)                                   relate to Hazardous Substances or health and safety
matters.


 


“Environmental
Licence” means any Authorisation required at any time under
Environmental Law.


 


“EURIBOR” means, in relation to any Loan in
euro:


 


(a)                                  the applicable Screen Rate; or


 


(b)                                  (if no Screen Rate is available for the Interest
Period of that Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its


 


6

















 


request quoted by the
Reference Banks to leading banks in the European interbank market,


 


as of the Specified Time on the Quotation Day
for the offering of deposits in euro for a period comparable to the Interest
Period of the relevant Loan.


 


“Event of
Default” means any event or circumstance specified as such in Clause
33 (Events of Default).


 


“Exceptional Items”
has the meaning given to it in Clause 31 (Financial
covenants).


 


“Existing Debt”
means the amount owed to the Owners which is to be prepaid using the proceeds
of Facility A in accordance with steps 1 to 17 of the section of the
Structuring Report entitled “JV — Structure for Europe”.


 


“Facility”
means Facility A or Facility B.


 


“Facility
A” means the term loan facility
made available under this Agreement as described in Clause 9 (The  Facilities).


 


“Facility A Commitment” means:


 


(a)                                  in relation to an Original Lender, the amount in the
Base Currency set opposite its name under the heading “Facility A Commitment”
in Part II of Schedule 4 (The Original
Parties) and the amount of any
other Facility A Commitment transferred to it under this Agreement; and


 


(b)                                  in relation to any other Lender, the amount in the
Base Currency of any Facility A Commitment transferred to it under this
Agreement,


 


to the extent not cancelled, reduced or
transferred by it under this Agreement.


 


“Facility A
Loan” means a loan made or to be made under Facility A or the
principal amount outstanding for the time being of that loan.


 


“Facility
A Repayment Date” means each date
specified in Clause 17.1 (Repayment of
Facility A Loans) for the payment of a Repayment Instalment.


 


“Facility
B” means the revolving credit
facility made available under this Agreement as described in Clause 9 (The  Facilities),
part of which may be designated as Ancillary Facilities in accordance with
Clause 9 (Ancillary Facilities).


 


“Facility B Commitment” means:


 


(a)                                  in relation to an Original Lender, the amount in the
Base Currency set opposite its name under the heading “Facility B Commitment”
in Part II of Schedule 4 (The Original
Parties) and the amount of any
other Facility B Commitment transferred to it under this Agreement; and


 


(b)                                  in relation to any other Lender, the amount in the
Base Currency of any Facility B Commitment transferred to it under this
Agreement,


 


to the extent not cancelled, reduced or
transferred by it under this Agreement (including a reduction pursuant to
Clause 16 (Ancillary Facilities)).


 


7
















 


“Facility B
Loan” means a loan made or to be made under Facility B or the
principal amount outstanding for the time being of that loan.


 


“Facility B
Utilisation” means a Facility B Loan, a Letter of Credit or a Bank
Guarantee.


 


“Facility
Office” means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following that
date, by not less than five Business Days’ written notice) as the office or
offices through which it will perform its obligations under this Agreement.


 


“Fee Letter”
means any letter or letters dated on or about the date of this Agreement
between, as the case may be, the Arranger and the Company, the Agent and the
Company, the Security Agent and the Company or the Issuing Bank and the Company
setting out any of the fees referred to in Clause 22 (Fees).


 


“Finance
Document” means this Agreement, the Subordination Agreement, any Fee
Letter, any Accession Letter, any Security Document, any Ancillary Facility
Document and any other document designated as such by the Agent and the
Company.


 


“Finance Lease”
means any lease or hire purchase contract which would, in accordance with IFRS,
be treated as a finance or capital lease.


 


“Finance
Party” means the Agent, an Ancillary Lender, the Security Agent, the
Arranger, the Issuing Bank or a Lender.


 


“Financial Indebtedness” means any
indebtedness for or in respect of the following (for the avoidance of doubt,
excluding any liabilities in respect of pension schemes or other
post-employment benefit schemes but including the Reborrowing Loan):


 


(a)                                  moneys borrowed;


 


(b)                                  any amount raised by acceptance under any acceptance
credit facility or dematerialised equivalent;


 


(c)                                   any amount raised pursuant to any note purchase
facility or the issue of bonds, notes, debentures, loan stock or any similar
instrument;


 


(d)                                  the amount of any liability in respect of any Finance
Lease;


 


(e)                                   receivables sold or discounted (other than any
receivables to the extent they are sold on a non-recourse basis);


 


(f)                                    any amount raised under any other transaction
(including any forward sale or purchase agreement) having the commercial effect
of a borrowing;


 


(g)                                   any derivative transaction entered into in connection
with protection against or benefit from fluctuation in any rate or price (and,
when calculating the value of any derivative transaction, only the marked to
market value shall be taken into account);


 


(h)                                  shares which are expressed to be redeemable at the
option of the holder prior to the Termination Date;


 


(i)                                      any counter-indemnity obligation in respect of a
guarantee, indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial


 


8

















 


institution in
respect of an underlying liability of an entity which is not a member of the
Group which liability would fall within one of the other paragraphs of this
definition; and


 


(j)                                     the amount of any liability in respect of any
guarantee or indemnity for any of the items referred to in paragraphs
(a) to (i) above.


 


“Financial Quarter”
means the period commencing on the day after one Quarter Date and ending on the
next Quarter Date.


 


“Financial Year”
has the meaning given to it in Clause 31 (Financial covenants).


 


“Finnish Holdco”
means White Pigments Holding Oy, a company incorporated in Finland with
business identity code 2196924-0.


 


“Finnish Security Documents”
means the following security agreements each to be governed by Finnish law and
to be entered into in connection with the other Finance Documents:


 


(a)                                  share pledge agreement over the shares in Finnish Holdco;


 


(b)                                  share pledge agreement over the shares in Kemira Pigments;


 


(c)                                   pledge agreement over the Floating Charge Notes in respect of Finnish
Holdco; and


 


(d)                                  pledge agreement over the Floating Charge Notes in respect of Kemira
Pigments.


 


“Finnish Trade Register
Extracts” means the commercial register (kaupparekisteri)
maintained by the Finnish National Board of Patents and Register (Patentti- ja rekisterihallitus).


 


“Floating Charge”
means a floating charge (Fi: yrityskiinnitys)
registered on movable property in accordance with the Finnish Act on Floating
Charge (Fi: yrityskiinnityslaki, 1984/634 as
amended).


 


“Floating Charge Notes”
means with respect to an Obligor incorporated in Finland the promissory notes (Fi: panttivelkakirja) with registered Floating Charge (FI: yrityskiinnitys) on the movable property of such
Obligor.


 


“GAAP”
means generally accepted accounting principles, standards and practices in the
jurisdiction of incorporation of the relevant member of the Group, including
IFRS.


 


“German Security Documents”
means the following security agreements each to be governed by German law and
to be entered into in connection with the other Finance Documents:


 


(a)                                  the global assignment agreement in respect of
receivables owned by the Company;


 


(b)                                  the account pledge agreement over the German bank
accounts of the Company;


 


(c)                                   the share pledge agreement over the shares in
Sachtleben Chemie;


 


(d)                                  the global assignment agreement in respect of
receivables owned by Sachtleben Chemie;


 


(e)                                   the account pledge agreement over the German bank
accounts of Sachtleben Chemie;


 


(f)                                    the transfer of title for security purposes agreement
in respect of the movable assets owned by Sachtleben Chemie (the “German Transfer Agreement”); and


 


9

















 


(g)                                   any other Security Document requested by the Security
Agent in accordance with the terms of the Finance Documents.


 


“Group”
means:


 


(a)                                  from the date of this Agreement to the date of first Utilisation of any
Facility, the Company, Sachtleben Chemie, Finnish Holdco, Kemira Pigments,
Pigment Chemie GmbH and Sachtleben Trading (Shanghai) Company Limited and any
entity acquired after the date of this Agreement (other than pursuant to a
transaction contemplated by steps 1-17, as set out in the section of the
Structuring Report entitled “JV - Structure for Europe”) which upon acquisition
becomes a Subsidiary of the Company; and


 


(b)                                  from the date of first Utilisation of any Facility, the Company and its
Subsidiaries for the time being.


 


“Guarantor”
means an Original Guarantor or an Additional Guarantor.


 


“Hazardous
Substance” means any waste, pollutant, contaminant or other
substance (including any liquid, solid, gas, ion, living organism or noise)
that may be harmful to human health or other life or the Environment or a
nuisance to any person.


 


“Hedging Letter” means a
letter dated on or about the date of this Agreement between the Arranger and
the Company setting out the hedging strategy agreed in relation to Facility A.


 


“Holding
Company” means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.


 


“IFRS”
means international accounting standards within the meaning of the IAS
Regulation 1606/2002 to the extent applicable to the relevant financial
statements.


 


“Information
Memorandum” means the document in the form approved by the Company
concerning the Group which, at the Company’s request and on its behalf, was prepared
in relation to this transaction and distributed by the Arranger to selected
financial institutions before the date of this Agreement.


 


“Insurance Proceeds”
means any cash proceeds (other than in relation to third party liabilities that
are, or are intended to be, applied to meet such liabilities or in relation to
consequential loss policies that are, or are intended to be, applied to cover
operating losses, loss of profits or business interruption or similar losses)
received by any member of the Group under or pursuant to any insurance policy
(or equivalent) after the date of this Agreement.


 


“Interest
Expenses” has the meaning given to it in Clause 31 (Financial covenants).


 


“Interest
Period” means, in relation to a Loan, each period determined in accordance
with Clause 20 (Interest Periods)
and, in relation to an Unpaid Sum, each period determined in accordance with
Clause 19.3 (Default interest).


 


“Issuing Bank”
means Merchant Banking, Skandinaviska Enskilda Banken AB (publ) and any Lender
which has notified the Agent that it has agreed to the Company’s request to be
an Issuing Bank pursuant to the terms of this Agreement (and if more than one
Lender has so agreed, such Lenders and Merchant Banking, Skandinaviska Enskilda
Banken AB (publ) shall be referred to, whether acting individually or together,
as the “Issuing Bank”) provided that, in


 


10

















 


respect of a Letter of Credit or Bank Guarantee
issued or to be issued pursuant to the terms of this Agreement, the “Issuing Bank” shall be the Issuing Bank
which has issued or agreed to issue that Letter of Credit or Bank Guarantee.


 


“Joint Venture”
means any joint venture entity, whether a company,
unincorporated firm, undertaking, joint venture, association, partnership or
any other entity.


 


“JV Costs” means
all fees, costs and expenses, stamp, registration and other Taxes incurred by
the Company or any other member of the Group in connection with steps 1 to 17
of the section of the Structuring Report entitled “JV - Structure for Europe”
or the Finance Documents.


 


“JV Document”
means:


 


(i)                                      the Shareholders’ and Joint Venture Agreement regarding the Titanium
Dioxide Joint Venture dated 21 May 2008;


 


(ii)                                   the Master Agreement regarding the Titanium Dioxide Joint Venture dated
21 May 2008;


 


(iii)                                the Master Agreement regarding the Implementation of the Titanium
Dioxide Joint Venture dated 21 May 2008; and


 


(iv)                               any other document relating to the Ti02 Joint Venture.


 


“Kemira Guarantee”
means the €7,200,000 bank guarantee granted by Pohjola Bank in favour of
Finland’s environmental administration on 30 April 2008 at the request of
Kemira Pigments.


 


“Kemira Pigments”
means Kemira Pigments Oy, a company incorporated in Finland with business
identity code 0948159-2.


 


“Kemira Pledge”
means the pledge over real estate granted by Kemira Pigments in favour of
Neliapila Pension Fund securing a principal amount of Financial Indebtedness
equal to €31,262,648.78 including but not limited to the mortgages set out in
more detail in Part II of Schedule 9 (Kemira Pledge).


 


“KPMG  Financial Due Diligence Report” means the report prepared by
KPMG OY AB in the Agreed Form.


 


“KPMG Supplementary Report”
means the report prepared by KPMG entitled “Project David Pro Forma FY 2007”
dated 12 February 2008.


 


“Legal Opinion”
means any legal opinion delivered to the Agent under Clause 11 (Conditions of Utilisation) or Clause 35 (Changes to the Obligors).


 


“Legal Reservations” means:


 


(a)                                  the principle that equitable remedies may be granted or refused at the
discretion of a court and the limitation of enforcement by laws relating to
insolvency, reorganisation and other laws generally affecting the rights of
creditors;


 


(b)                                  the time barring of claims under applicable statutes of limitation, the
possibility that an undertaking to assume liability for or indemnify a person
against non-payment of stamp duty may be void and defences of set-off or
counterclaim;


 


(c)                                   similar principles, rights and defences under the laws of any Relevant Jurisdiction;
and


 


11

















 


(d)                                  any other matters which are set out as qualifications or reservations as
to matters of law of general application in the Legal Opinions.


 


“Lender”
means:


 


(a)                                  any Original Lender; and


 


(b)                                  any bank, financial institution, trust, fund or other
entity which has become a Party in accordance with Clause 34 (Changes to the Lenders),


 


which in each case has not ceased to be a Party
in accordance with the terms of this Agreement.


 


“Letter of
Credit” means a letter of credit, substantially in the form set out
in Schedule 14 (Form of Letter of
Credit) or in any other form requested by a Borrower and agreed by
the Agent and the Issuing Bank.


 


“Letter of Credit
and Bank Guarantee Limit” means €10,000,000.


 


“Liabilities”
means all present and future moneys, debts and liabilities due, owing or
incurred by an Obligor to any Finance Party under or in connection with any
Finance Document (in each case, whether alone or jointly, or jointly and
severally, with any other person, whether actually or contingently and whether
as principal, surety or otherwise).


 


“LIBOR” means, in relation to any Loan:


 


(a)                                  the applicable Screen Rate; or


 


(b)                                  (if no Screen Rate is available for the currency or
Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards
to four decimal places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the London interbank market,


 


as of the Specified Time on the Quotation Day
for the offering of deposits in the currency of that Loan and for a period
comparable to the Interest Period for that Loan.


 


“LMA”
means the Loan Market Association.


 


“Loan”
means a Facility A Loan or a Facility B Loan.


 


“Majority Lenders” means:


 


(a)                                  if there are no Utilisations then outstanding, a
Lender or Lenders whose Commitments aggregate more than 662/3% of the Total Commitments (or, if the Total Commitments have been
reduced to zero, aggregated more than 662/3% of the Total Commitments immediately prior to the reduction); or


 


(b)                                  at any other time, a Lender or Lenders whose
participations in the Utilisations then outstanding aggregate more than 662/3% of all the Utilisations then outstanding.


 


For the purpose of this definition, the
provisions of Clause 9.5 (Adjustments to Facility B
Commitment) shall not apply.


 


“Mandatory
Cost” means the percentage rate per annum calculated by the Agent in
accordance with Schedule 7 (Mandatory Cost
formulae).


 


12

















 


“Margin”
means 3.00 per cent. per annum, subject to adjustment in accordance with Clause
19.5 (Adjustment of Margin).


 


“Material Adverse Effect” means a material
adverse effect on or material adverse change in:


 


(a)                                  the financial condition, assets or business of the
Group taken as a whole;


 


(b)                                  the ability of any Obligor to perform and comply with
its payment obligations under any Finance Document or its obligations under
Clause 31.1 (Financial condition);


 


(c)                                   the validity, legality or enforceability of any Finance
Document; or


 


(d)                                  the validity, legality or enforceability of any
Security expressed to be created pursuant to any Security Document or on the
priority and ranking of any of that Security.


 


“Material Subsidiary” means:


 


(a)                                  a Subsidiary of the Company listed in the list of Material Subsidiaries
provided to the Agent under Clause 11.1 (Initial
conditions precedent);


 


(b)                                  a Subsidiary of the Company, the total net assets, EBITDA or total
turnover of which (unconsolidated where that Subsidiary itself has Subsidiaries)
as at the date as at which its latest unaudited unconsolidated annual or
quarterly financial statements were prepared or, as the case may be, for the
financial period to which those financial statements relate account for 5 per
cent. or more of the consolidated total net assets, EBITDA or total turnover of
the Group (all as calculated by reference to the latest audited annual or
quarterly consolidated financial statements of the Group);


 


(c)                                   a Holding Company of a Subsidiary falling within paragraph
(b) above; or


 


(d)                                  a Subsidiary of the Company to which has been transferred (whether in a
single transaction or a series of transactions (whether related or not)) the
whole or substantially the whole of the assets of a Subsidiary which
immediately prior to such transaction(s) was a Material Subsidiary.


 


For the purposes of this definition:


 


(i)                                      if a Subsidiary becomes a Material Subsidiary under paragraph
(d) above, the Material Subsidiary by which the relevant transfer was made
shall, subject to paragraph (b) above, cease to be a Material Subsidiary;
and


 


(ii)                                   if a Subsidiary is acquired by any member of the Group after the end of
the financial period to which the latest audited consolidated financial
statements of the Group relate, those financial statements shall be adjusted as
if that Subsidiary had been shown in them by reference to its then latest
audited financial statements until audited consolidated financial statements of
the Group for the financial period in which the acquisition is made have been
prepared.


 


“Month” means a period starting on one day
in a calendar month and ending on the numerically corresponding day in the next
calendar month, except that:


 


13

















 


(a)                                  if the numerically corresponding day is not a Business
Day, that period shall end on the next Business Day in that calendar month in
which that period is to end if there is one, or if there is not, on the
immediately preceding Business Day; and


 


(b)                                  if there is no numerically corresponding day in the
calendar month in which that period is to end, that period shall end on the
last Business Day in that calendar month.


 


The above rules will only apply to the
last Month of any period.


 


“Net Debt” has the meaning given to it
in Clause 31 (Financial covenants).


 


“Net Interest Expenses” has the meaning
given to it in Clause 31 (Financial covenants).


 


“Net Sale Proceeds” means
the cash proceeds (including, when received, the cash proceeds of any deferred
consideration, whether by way of adjustment to the purchase price or otherwise)
received by a member of the Group from a person which is not a member of the
Group in connection with the sale, transfer or other disposal by any member of
the Group of an asset (which is a sale, transfer or other disposal falling
within paragraphs (f) or (m) of the definition of Permitted Disposal)
after deducting:


 


(a)                                  fees and transaction costs properly incurred in connection with that
sale, transfer or disposal;


 


(b)                                  Taxes paid or reasonably estimated by the Company to be payable (as
certified by the Company to the Agent) as a result of that sale, transfer or
disposal;


 


(c)                                   any amount repayable in cash to the entity disposed of under
intercompany debt; and


 


(d)                                  the amount of indebtedness secured by the asset which is the subject of
that sale, transfer or disposal which is repaid out of the cash proceeds of
that sale, transfer or disposal.


 


“Non-Group Entity”
has the meaning given to it in Clause 31 (Financial covenants).


 


“Obligor”
means a Borrower or a Guarantor.


 


“Optional
Currency” means a currency (other than the Base Currency) which
complies with the conditions set out in Clause 11.3 (Conditions relating to Optional Currencies).


 


“Original Financial Statements” means:


 


(a)                                  in relation to the Company, the proforma unaudited
consolidated financial statements of the Group for the period ended 31
December 2007;


 


(b)                                  in relation to Finnish Holdco, its opening balance
sheet; and


 


(c)                                   in relation to each Original Obligor other than the
Company and Finnish Holdco, its unaudited consolidated financial statements for
its financial year ended 31 December 2007.


 


“Original
Obligor” means an Original Borrower or an Original Guarantor.


 


“Owners” means
Kemira Oy and Rockwood Specialties Group GmbH, and “Owner”
means any one of them.


 


14

















 


“Participating
Member State” means any member state of the European Communities
that adopts or has adopted the euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary Union.


 


“Party”
means a party to this Agreement.


 


“Pension Items” has the meaning given to it in Clause 31 (Financial covenants).


 


“Perfection Requirements”
means the making of the appropriate registrations, filings or notifications of
or pursuant to the Security Documents.


 


“Permitted Acquisition” means:


 


(a)                                  the acquisition of, or investment in, any share or interest in any
Permitted Joint Venture;


 


(b)                                  the acquisition by a member of the Group of any share or asset sold, leased,
transferred or otherwise disposed of by another member of the Group in
circumstances constituting a Permitted Disposal;


 


(c)                                   the acquisition by a member of the Group of Cash Equivalent Investments
provided that that member of the Group creates Security over those Cash
Equivalent Investments under a Security Document to the extent necessary to
ensure that the Finance Parties will enjoy the same or equivalent Security over
those assets as that provided over assets by the acquiring Obligor or other
Obligors incorporated in its jurisdiction of incorporation; or


 


(d)                                  an acquisition by any member of the Group of any business or of all or
at least 75 per cent. of the issued share capital of a limited liability
company or the partnership interests of a limited partnership if:


 


(i)                                  no Event of Default is continuing on the closing date for that
acquisition or would occur as a result of that acquisition;


 


(ii)                               the acquired company or business is incorporated or established, and
carries on its principal business, in any jurisdiction in which acquisitions
are not prohibited to be made under any law applicable to the Owners;


 


(iii)                            the acquired company carries on, or the business is, a business
substantially the same as, or similar or complementary to, that carried on by
the Group;


 


(iv)                           until the date of delivery of a Compliance Certificate showing that the
ratio of Net Debt (excluding the amount of any proceeds of any new equity or
Financial Indebtedness subordinated to the Facilities on terms acceptable to
the Majority Lenders (acting reasonably) received by a member of the Group from
a person which is not a member of the Group and which is subsequently used to
fund any such acquisition (or associated costs and expenses) or to refinance
Financial Indebtedness remaining in any such acquired companies or businesses)
on any Quarter Date to EBITDA for the Relevant Period ending on that Quarter
Date does not exceed 2.50:1.00:


 


(A)                            the total consideration (including associated costs and expenses) for
that acquisition (and any Financial Indebtedness remaining in the acquired 


 


15

















 


company or business at the
date of acquisition) when aggregated with the consideration (including
associated costs and expenses) for any other acquisition permitted under this
paragraph (d) (and any Financial Indebtedness remaining in any such
acquired companies or businesses at the date of acquisition) less the proceeds
of any new equity or Financial Indebtedness subordinated to the Facilities on
terms acceptable to the Majority Lenders (acting reasonably) received by a
member of the Group from a person which is not a member of the Group and used
to fund any such acquisition (or associated costs and expenses) or to refinance
Financial Indebtedness remaining in any such acquired companies or business
does not in any financial year of the Company exceed €10,000,000 (or its
equivalent in another currency or currencies); and


 


(B)                            the total consideration (including associated costs and expenses) for
that acquisition (and any Financial Indebtedness remaining in the acquired
company or business at the date of acquisition) does not exceed €50,000,000 (or
its equivalent in another currency or currencies);


 


(v)                              to the extent that the acquired company would constitute a Material
Subsidiary or be required to become a Guarantor to ensure that the Company
complies with its obligations under Clause 32.22 (Guarantees
and Security) based on calculations for the Relevant Period referred
to in paragraph (vi) below if the relevant tests were recalculated (A) consolidating
the financial statements of the company to be acquired (consolidated if that
company has Subsidiaries) for that Relevant Period with those of the Group on a
pro forma basis and (B) as if the consideration for the proposed
acquisition had been paid at the start of that Relevant Period, and to the
extent lawful, valid and effective Security, in form and substance satisfactory
to the Security Agent, is given in favour of the Security Agent for the benefit
of the Finance Parties over all the shares and material assets of the acquired
company upon or immediately following its acquisition;


 


(vi)                           at least five Business Days before any member of the Group legally
commits to making the proposed acquisition (other than an acquisition, the
total consideration for which does not exceed €1,000,000), the Company
certifies that:


 


(A)                            it would have complied with the requirements of paragraphs (a) and
(b) of Clause 31.1 (Financial condition)
for the Relevant Period ending on the last Quarter Date for which financial
statements are available falling before that certificate is given, if the
covenant tests for that Relevant Period were recalculated (i) consolidating
the financial statements of the company or business to be acquired
(consolidated if that company has Subsidiaries) for that Relevant Period with
those of the Group on a pro forma basis and taking into account reasonable
synergies as confirmed by the Company’s auditors (ii) as if the
consideration for the proposed acquisition had been paid at the start of that
Relevant Period; and


 


16

















 


(B)                            the company or business to be acquired had positive EBITDA for the
twelve month period to which its latest management accounts relate; and


 


(vii)                        if that acquisition is of all of the issued share capital of a limited
liability company, and to the extent available, the Company supplies to the
Agent a copy of:


 


(A)                            the most recent annual audited financial statements of that company
(consolidated if it has Subsidiaries); and


 


(B)                            the most recent management accounts of that company (consolidated if it
has Subsidiaries);


 


(e)                                   an acquisition of shares or securities permitted pursuant to Clause 32.23
(Issue of shares); and


 


(f)                                    the acquisition of a company which has not traded prior to the date of
acquisition and has no liabilities and which on acquisition becomes a member of
the Group, but only if, if the shares in the company are owned by an Obligor,
Security over the shares of that company, in form and substance satisfactory to
the Agent, is created in favour of the Security Trustee within 30 days of the
date of its incorporation.


 


“Permitted Disposal” means
a sale, lease, transfer or other disposal:


 


(a)                                  of assets (including inventory) by any member of the Group in the
ordinary course of trading of the disposing entity;


 


(b)                                  of Cash Equivalent Investments for cash or in exchange for other Cash
Equivalent Investments;


 


(c)                                   of cash to the extent not expressly prohibited under the terms of the
Finance Documents;


 


(d)                                  arising as a result of any Permitted Security;


 


(e)                                   of assets to a Permitted Joint Venture;


 


(f)                                    of obsolete or redundant vehicles, plant and equipment for cash and
which, in the reasonable opinion of the member of the Group making the sale,
transfer or disposal, are not required for the efficient operation of its
business;


 


(g)                                   of assets in exchange for other assets comparable or superior as to
type, value or quality;


 


(h)                                  of assets by an Obligor to another Obligor provided that the Security
Agent, acting reasonably, is satisfied that the Finance Parties will enjoy the
same or equivalent Security over those assets;


 


(i)                                      of assets by a member of the Group which is not an Obligor to another
member of the Group which is not an Obligor;


 


(j)                                     of assets by a member of the Group which is not an Obligor to an Obligor
provided that the Security Agent, acting reasonably, is satisfied that the
Finance Parties will enjoy the same or equivalent Security over those assets as
that provided over assets of that type by the acquiring Obligor or other
Obligors incorporated in its jurisdiction of incorporation 


 


17
















 


and provided further that
such sale, lease, transfer or disposal is on terms not less advantageous to the
relevant Obligor than arm’s length terms;


 


(k)                                  of assets by an Obligor to another member of the Group which is not an
Obligor provided that the aggregate of the consideration for such assets does
not, in any financial year of the Company, when aggregated with the
consideration for any other assets sold by an Obligor to a member of the Group
which is not an Obligor in that financial year exceed €2,000,000 (or its
equivalent in another currency or currencies) and provided further that such
sale, lease transfer or disposal is on terms not less advantageous to the
relevant Obligor than arm’s length terms;


 


(l)                                      which is a lease or licence of real property granted in the ordinary
course of trading of the disposing entity;


 


(m)                              that has been approved by the Agent (acting on the instructions of the
Majority Lenders); or


 


(n)                                  where the net consideration receivable (when aggregated with the net
consideration receivable for any other sale, lease, transfer or other disposal,
other than any permitted under paragraphs (a) to (m) above), does not
exceed €10,000,000 (or its equivalent in another currency or currencies) in any
financial year of the Company.


 


“Permitted Financial Indebtedness”
means:


 


(a)                                  any Financial Indebtedness arising under any Finance Document;


 


(b)                                  any Financial Indebtedness owed to the Owners or (in the amount of up to
€2,900,000 (in accordance with step 18 of the Structuring Report) plus
capitalised interest at a rate not exceeding the interest rate payable under
this Agreement in respect of a Facility A Loan in respect of the same period
plus 5 per cent. per annum) iSiltec Innovative Silicon Technologies GmbH (to be
renamed Sachtleben Wasserchemie GmbH), which from the date of the first
Utilisation of Facility A is subordinated under the Subordination Agreement
(including Financial Indebtedness arising pursuant to any Shareholder Loan) or
which is otherwise subordinated on terms acceptable to the Majority Lenders
(acting reasonably);


 


(c)                                   any Financial Indebtedness arising under a Permitted Loan or a Permitted
Guarantee;


 


(d)                                  any Financial Indebtedness arising under a Permitted Joint Venture;


 


(e)                                   until the date of first Utilisation under Facility A, any Existing Debt;


 


(f)                                    any Financial Indebtedness to the extent covered by a Letter of Credit
or Bank Guarantee or a guarantee, bond or letter of credit issued under an
Ancillary Facility;


 


(g)                                   any Financial Indebtedness arising under a Finance Lease the aggregate
principal amount of which when aggregated with the Financial Indebtedness under
each other Finance Lease entered into by members of the Group does not at any
time exceed €2,000,000 (or its equivalent in another currency or currencies);


 


(h)                                  any Financial Indebtedness arising under a Permitted Hedging
Transaction;


 


18

















 


(i)                                      any Financial Indebtedness of any person acquired by a member of the
Group after the date of this Agreement which is incurred under arrangements in
existence at the date of acquisition, but not incurred or increased or its maturity
date extended in contemplation of, or since, that acquisition, and outstanding
only for a period of three months following the date of acquisition;


 


(j)                                     any Financial Indebtedness approved by the Agent (acting on the
instructions of the Majority Lenders);


 


(k)                                  the Reborrowing Loan; or


 


(l)                                      any Financial Indebtedness not falling within paragraphs (a) to (k) above,
the aggregate outstanding principal amount of which across the Group does not
at any time exceed €4,000,000 (or its equivalent in another currency or
currencies).


 


“Permitted Guarantee” means:


 


(a)                                  any guarantee arising under any Finance Document;


 


(b)                                  until the date of first Utilisation of Facility A, the Kemira Guarantee;


 


(c)                                   any guarantee issued by an Obligor in respect of the obligations or
liabilities of another Obligor (including any guarantee in respect of a netting
or set-off arrangement entered into by that Obligor in the ordinary course of
its banking arrangements for the purpose of netting debit and credit balances
of Obligors);


 


(d)                                  any guarantee issued by an Obligor in relation to the obligations or
liabilities of a member of the Group which is not an Obligor (including any
guarantee in respect of a netting or set-off arrangement entered into by that
Obligor in the ordinary course of its banking arrangements for the purpose of
netting debit and credit balances of members of the Group) provided that the
aggregate principal amount guaranteed at any time does not, when aggregated
with the amount of any loans outstanding at that time which are permitted under
paragraph (c) of the definition of Permitted Loan, exceed €3,000,000 (or
its equivalent in another currency or currencies);


 


(e)                                   any guarantee issued by a member of the Group which is not an Obligor in
respect of the obligations or liabilities of another member of the Group which
is not an Obligor (including any guarantee in respect of a netting or set-off
arrangement entered into by that member of the Group in the ordinary course of
its banking arrangements for the purpose of netting debit and credit balances
of members of the Group);


 


(f)                                    any guarantee issued by a member of the Group which is not an Obligor in
respect of the obligations or liabilities of an Obligor (including any
guarantee in respect of a netting or set-off arrangement entered into by that
member of the Group in the ordinary course of its banking arrangements for the
purpose of netting debit and credit balances of members of the Group);


 


(g)                                   any guarantee issued by a member of the Group in respect of the
liabilities or obligations of a Permitted Joint Venture;


 


19

















 


(h)                                  any guarantee issued by a member of the Group on arm’s length terms and
in the ordinary course of its trading, to the extent that it is not in respect
of Financial Indebtedness, nor to or for the benefit of, nor in respect of the
liabilities or obligations of, another member of the Group;


 


(i)                                      any customary indemnity to a purchaser in relation to a Permitted
Disposal provided that the maximum potential liability under any such indemnity
does not exceed the consideration received by the Group for that disposal;


 


(j)                                     any guarantee issued in respect of another member of the Group’s
liabilities or obligations as lessee under any lease of real property;


 


(k)                                  any guarantee issued in respect of a Permitted Hedging Transaction;


 


(l)                                      any guarantee issued by a person acquired by a member of the Group after
the date of this Agreement which is issued under arrangements in existence at
the date of acquisition but not issued or its maturity date extended in
contemplation of, or since, that acquisition, and outstanding only for a period
of three months following the date of acquisition;


 


(m)                              the counter indemnity to be granted by Kemira Pigments in connection
with a letter of credit for an amount up to €17,000,000 relating to the
Reborrowing Loan;


 


(n)                                  any guarantee approved by the Agent (acting on the instructions of the
Majority Lenders); or


 


(o)                                  any guarantee not falling within paragraphs (a) to (n) above,
where the aggregate liability (whether actual or contingent) of members of the
Group under all such guarantees does not, when aggregated with the aggregate
principal amount of any loans outstanding at that time which are permitted
under paragraph (k) of the definition of Permitted Loan, at any time
exceed €2,000,000 (or its equivalent in another currency or currencies).


 


“Permitted Hedging
Transaction” means:


 


(a)                                  any derivative transaction required by the Hedging Letter and documented
by a Hedging Document;


 


(b)                                  interest rate hedging agreements and spot and forward delivery foreign
exchange contracts entered into in the ordinary course of business and not for
speculative purposes; and


 


(c)                                   any derivative transaction entered into in connection with protection
against or benefit from fluctuation in any rate or price (including in relation
to electricity) and entered into for the hedging of actual or projected real
exposures arising in the ordinary course of trading activities of a member of
the Group and not for speculative purposes.


 


“Permitted Joint Venture”
means a Joint Venture where:


 


(a)                                  no Event of Default is continuing on the date of the acquisition of, or
investment in, or transfer or loan to, or the granting of any guarantee,
Security or Quasi Security for the obligations of, or the incurring of any other
liability to, the Joint Venture or would occur as a result of the acquisition
of or investment in, or transfer or loan to, or guarantee, 


 


20

















 


Security or Quasi Security
for the obligations of, or the incurring of any other liability to, the Joint
Venture;


 


(b)                                  the Joint Venture is incorporated or established, and carries on its
principal business, in any jurisdiction in which joint ventures are not
prohibited to be entered into under any law applicable to the Owners;


 


(c)                                   the Joint Venture carries on, or is, a business substantially the same
as, or similar or complementary to, that carried on by the Group; and


 


(d)                                  the amount that any member of the Group invests in or pays to acquire
any share or interest in, or the value of the assets that any member of the
Group transfers or lends to, or the actual or contingent liability of any
member of the Group under any guarantee, Security or Quasi Security for the
obligations of, or any liability (whether actual or contingent and whether
present or future) of any member of the Group in respect of, the Joint Venture,
does not in any financial year of the Company exceed in aggregate €2,000,000
(or its equivalent in another currency or currencies).


 


“Permitted Loan” means:


 


(a)                                  any trade credit extended by any member of the Group to its customers on
normal commercial terms and in the ordinary course of its trading activities;


 


(b)                                  any loan, credit or other arrangement having a similar effect, made by
an Obligor to another Obligor;


 


(c)                                   any loan, credit or other arrangement having a similar effect, made by
an Obligor to another member of the Group which is not an Obligor provided that
the aggregate principal amount of all such loans, credit or other arrangements
having a similar effect, outstanding at any time does not, when aggregated with
the amount of any guarantee outstanding at that time which are permitted under
paragraph (d) of the definition of Permitted Guarantee, exceed €3,000,000
(or its equivalent in another currency or currencies) and provided further that
such loan is on terms not less advantageous to the relevant Obligor than arm’s
length terms;


 


(d)                                  a loan, credit or other arrangement having a similar effect made by a
member of the Group which is not an Obligor to another member of the Group
which is not an Obligor;


 


(e)                                   a loan, credit or other arrangement having a similar effect made by a
member of the Group which is not an Obligor to an Obligor if that member of the
Group has entered into a subordination agreement in form and substance
satisfactory to the Agent;


 


(f)                                    a loan, credit or other arrangement having a similar effect made to a
Permitted Joint Venture;


 


(g)                                   a loan, credit or other arrangement having a similar effect which
constitutes Permitted Financial Indebtedness;


 


(h)                                  a loan, credit or other arrangement having a similar effect made by a
member of the Group to an employee or director of any member of the Group if the
amount of that loan, when aggregated with the amount of all loans to employees
and directors by members 


 


21

















 


of the Group, does not at
any time exceed €1,000,000 (or its equivalent in another currency or
currencies);


 


(i)                                      any loan, credit or other arrangement having a similar effect
constituting deferred consideration on any Permitted Disposal until the date
which is six months after the date of the relevant disposal;


 


(j)                                     the US JV Loan; or


 


(k)                                  any loan, credit or other arrangement having a similar effect not
falling within paragraphs (a) to (j), the aggregate principal amount of
which at any time does not, when aggregated with the aggregate principal amount
of the Financial Indebtedness under any such loans and the aggregate liability
(whether actual or contingent) under any guarantees at that time which are
permitted under paragraph (o) of the definition of Permitted Guarantee,
exceed €2,000,000 (or its equivalent in another currency or currencies).


 


“Permitted Security” means:


 


(a)                                  any Security or Quasi-Security listed in Part I of Schedule 9 (Existing Security) except to the extent the principal amount
secured by that Security exceeds the amount stated in that Schedule;


 


(b)                                  any lien arising by operation of law and in the ordinary course of
trading and not as a result of any default or omission by any member of the
Group;


 


(c)                                   any retention of title arrangements and rights of set-off arising in the
ordinary course of trading with suppliers of goods to any member of the Group
and not as a result of any default or omission by any member of the Group;


 


(d)                                  any Security or Quasi Security created pursuant to any Finance Document;


 


(e)                                   any Security or Quasi Security over or affecting any asset acquired by a
member of the Group after the date of this Agreement, if:


 


(i)                                  the Security or Quasi Security was not created in contemplation of the
acquisition of that asset by a member of the Group;


 


(ii)                               the principal amount secured has not been increased in contemplation of
or since the acquisition of that asset by a member of the Group; and


 


(iii)                            the Security or Quasi Security is removed or discharged within three
months of the date of acquisition of such asset;


 


(f)                                    any Security or Quasi Security over or affecting any asset of any
company which becomes a member of the Group after the date of this Agreement,
where the Security or Quasi Security is created prior to the date on which that
company becomes a member of the Group, if:


 


(i)                                  the Security or Quasi Security was not created in contemplation of the
acquisition of that company;


 


22

















 


(ii)                               the principal amount secured has not increased in contemplation of or
since the acquisition of that company; and


 


(iii)                            the Security or Quasi Security is removed or discharged within three
months of that company becoming a member of the Group;


 


(g)                                   any Security or Quasi Security arising under any Finance Lease and
provided that the Financial Indebtedness secured thereby is permitted under
paragraph (g) of the definition of Permitted Financial Indebtedness;


 


(h)                                  any Security or Quasi Security over goods and documents of title to
goods arising in the ordinary course of letter of credit transactions not
prohibited by this Agreement;


 


(i)                                      any netting or set-off arrangement entered into by a member of the Group
in the ordinary course of its banking arrangements for the purpose of netting
debit and credit balances of members of the Group, provided that (1) the
arrangement only permits credit balances of Obligors to be netted or set off
against debit balances of members of the Group which are not Obligors to the
extent that the aggregate amount of credit balances available for set-off at
any time does not, when aggregated with the amount of any loans outstanding at
that time which are permitted under paragraph (c) of the definition of
Permitted Loan, exceed €3,000,000 (or its equivalent in another currency or
currencies); and (2) if the arrangement gives rise to other Security or
Quasi Security over the assets of Obligors in support of liabilities of members
of the Group which are not Obligors, the aggregate amount of those liabilities
at any time, when aggregated with the amounts in paragraph (1) above, does
not exceed €2,000,000 (or its equivalent in another currency or currencies);


 


(j)                                     any Quasi Security arising as a result of a sale, transfer or other
disposal which is a Permitted Disposal;


 


(k)                                  any lien arising under the general terms and conditions of banks or
Sparkassen (Allgemeine Geschäftsbedingungen der Banken oder
Sparkassen) with whom any member of the Group maintains its banking
arrangements;


 


(l)                                      until the date of first Utilisation of Facility A, the Kemira Pledge;
and


 


(m)                              any Security or Quasi Security, over assets of the Group the market
value of which (when aggregated with the market value of any other assets over
which Security or Quasi Security is given by any member of the Group other than
any permitted under paragraphs (a) to (l) above) does not at any time
exceed €2,000,000 (or its equivalent in another currency or currencies).


 


“Permitted Transaction” means:


 


(a)                                  any intra-Group loan which is a Permitted Loan;


 


(b)                                  the solvent liquidation or reorganisation of any member of the Group
which is not an Obligor so long as any payments or assets distributed as a
result of such liquidation or reorganisation are distributed to other members
of the Group; or


 


23

















 


(c)                                   a merger on a solvent basis of Finnish Holdco and Kemira Pigments
pursuant to the Structuring Report where:


 


(i)                                  all of the business and assets of Finnish Holdco and Kemira Pigments are
retained by the surviving entity, being one of them;


 


(ii)                               the surviving entity of that merger is liable for the obligations of the
Obligor it has merged with; and


 


(iii)                            the Agent and the
Security Agent are given ten Business Days’ notice by the Company of that
proposed merger and the Security Agent, acting reasonably, is satisfied that
the Finance Parties will enjoy the same or equivalent Security over the same
assets and over the surviving entity and the shares in it.


 


(d)                                  any payments or other transactions contemplated by and set out in steps
1 to 17 of the section of the Structuring Report entitled “JV — Structure for
Europe” (including any repayment of Existing Debt which is funded by a Facility
A Loan).


 


“PwC Financial Due
Diligence Report” means the report prepared by
PricewaterhouseCoopers Aktiengesellschaft Wirtschaftsprüfungsgesellschaft in
the Agreed Form.


 


“Qualifying
Lender” has the meaning given to it in Clause 23 (Tax gross-up and indemnities).


 


“Quarter Date” means each of 31 December, 31 March, 30 June and
30 September.


 


“Quasi Security” means a transaction under which any
member of the Group will:


 


(a)                                  sell, transfer or otherwise dispose of any of its assets on terms
whereby they are or may be leased to or re-acquired by any other member of the
Group;


 


(b)                                  sell, transfer or otherwise dispose of any of its receivables on
recourse terms;


 


(c)                                   enter into any arrangement under which money or the benefit of a bank or
other account may be applied, set-off or made subject to a combination of
accounts; or


 


(d)                                  enter into any other preferential arrangement having a similar effect,


 


in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of financing the
acquisition of an asset.


 


“Quotation Day” means, in relation to any
period for which an interest rate is to be determined:


 


(a)                                  (if the currency is euro) two TARGET Days before the
first day of that period; or


 


(b)                                  (for any other currency) two Business Days before the
first day of that period,


 


unless market practice differs in the Relevant
Interbank Market for a currency, in which case the Quotation Day for that
currency will be determined by the Agent in accordance with market practice in
the Relevant Interbank Market (and if quotations for that currency and period
would normally be given by leading banks in the Relevant Interbank Market on
more than one day, the Quotation Day will be the last of those days).


 


“Reborrowing Loan” means the €23,177,144.59 loan made available by
Kemira Pigments Dy:n eläkesääkiö to Kemira Pigments existing on the date of
this Agreement.


 


24

















 


“Reference
Banks” means, in relation to LIBOR and EURIBOR and Mandatory Cost,
the principal London offices of Merchant Banking, Skandinaviska Enskilda Banken
AB (publ) and Nordea Bank Finland Plc or such other banks as may be appointed
by the Agent in consultation with the Company.


 


“Relevant
Interbank Market” means, in relation to euro, the European interbank
market  and,
in relation to any other currency, the London interbank market.


 


“Relevant Jurisdiction”
means, in relation to an Obligor:


 


(a)                                     its jurisdiction of incorporation;


 


(b)                                     any jurisdiction where any asset subject to or intended to be subject to
the Security to be created by it is situated;


 


(c)                                      any jurisdiction where it conducts its business; and


 


(d)                                     the jurisdiction whose laws govern the perfection of any of the Security
Documents entered into by it.


 


“Relevant
Period” means each period of four consecutive Financial Quarters
ending on a Quarter Date.


 


“Repayment
Instalment” means each instalment for repayment of the Facility A
Loan specified in Clause 17.1 (Repayment
of  Facility A Loans).


 


“Repeating
Representations” means each of the representations set out in
Clauses 29.1 (Status), 29.2 (Binding obligations), 29.3 (Non-conflict with other obligations), 29.4
(Power and authority), 29.5 (Validity  and admissibility in
evidence), 29.6 (Governing law
and enforcement), 29.9 (No
default), and paragraph (c) of 29.11 (Financial statements).


 


“Resignation Letter”
means a letter substantially in the form set out in Schedule 13 (Form of Resignation Letter).


 


“Rollover Loan” means one or more Facility B
Loans:


 


(a)                                  made or to be made on the same day that (i) a
maturing Facility B Loan is due to be repaid or (ii) a Borrower is obliged
to pay to the Agent for the Issuing Bank the amount of any claim under a Letter
of Credit or Bank Guarantee;


 


(b)                                  the aggregate amount of which is equal to or less than
(i) the maturing Facility B Loan or (ii) the amount of the claim
under the Letter of Credit or Bank Guarantee;


 


(c)                                   in the same currency as (i) the maturing Facility
B Loan (unless it arose as a result of the operation of Clause 15.2 (Unavailability of a currency)) or
(ii) the claim under the Letter of Credit or Bank Guarantee; and


 


(d)                                  made or to be made to the same Borrower for the
purpose of (i) refinancing a maturing Facility B Loan or
(ii) satisfying the obligations of the Borrower to pay the amount of a
claim under the Letter of Credit or Bank Guarantee to the Agent for the Issuing
Bank.


 


“Sachtleben Chemie”
means Sachtleben Chemie GmbH, a limited liability company incorporated under
the laws of Germany (Gesellschaft mit
beschränkter Haftung) and registered 


 


25

















 


with the commercial register (Handelsregister) of the local court (Amtsgericht)
of Duisburg under the registration number HR B 1 96 69.


 


“Screen Rate” means:


 


(a)                                  in relation to LIBOR, the British Bankers Association
Interest Settlement Rate for the relevant currency and period; and


 


(b)                                  in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for the relevant
period,


 


displayed on the appropriate page of the
Reuters screen. If the agreed page is replaced or service ceases to be
available, the Agent may specify another page or service displaying the
appropriate rate after consultation with the Company and the Lenders.


 


“Security”
means a mortgage, charge, pledge, lien, assignment, retention or transfer of
title for security purposes or other security interest securing any obligation
of any person or any other agreement or arrangement having a similar effect.


 


“Security
Document” means the Finnish Security Documents, the German Security
Document and any other security document that may at any time be entered into
by any member of the Group as security for any of the Liabilities pursuant to
or in connection with any Finance Document.


 


“Security
Property” has the meaning given to it in Schedule 10 (Security agency provisions).


 


“Selection
Notice” means a notice substantially in the form set out in
Part II of Schedule 6 (Requests)
given in accordance with Clause 20 (Interest
Periods) in relation to Facility A.


 


“Shareholder Loan”
means:


 


(a)                                  a loan made available pursuant to an agreement dated
28 April 2005 (as amended) between Rockwood Specialities Group GmbH as
lender and Knight Dritte Beteiligungs - GmbH (now Sachtleben Chemie) as
borrower relating to a loan in an amount of €16,229,175.47;


 


(b)                                  a loan made available pursuant to an agreement dated
30 July 2004 (as amended) between Knight Erste Beteiligungs - GmbH (now
Rockwood Specialities Group GmbH) as lender and Knight Dritte Beteilingungs -
GmbH (now Sachtleben Chemie) as borrower relating to a loan in an amount of
€266,300,000;


 


(c)                                   a loan made available by Kemira Oy to Kemira Pigments
maturing on 9 December 2008;


 


(d)                                  a loan made available by Kemira Oy to Kemira Pigments
maturing on 27 June 2008;


 


(e)                                   a loan made available by Kemira Oy to Kemira Pigments
maturing on 9 December 2008; and


 


(f)                                    a loan made available by Kemira Oy to Kemira Pigments
maturing on 27 June 2008.


 


“Specified
Time” means a time determined in accordance with Schedule 13 (Timetables).


 


26

















 


“Structuring Report”
means the draft report entitled “Project David Outline Structuring Steps —
Working Draft” prepared by Deloitte & Touche GmbH
Wirtschaftsprüfungsgesellschaft in the Agreed Form.


 


“Subordination Agreement”
means the subordination agreement to be entered into between, amongst others,
the Agent, the Obligors and the Owners.


 


“Subsidiary”
means in relation to any company, corporation or other legal entity (a “holding company”), a company, corporation or other legal
entity:


 


(a)                                  which is controlled, directly or indirectly, by the
holding company;


 


(b)                                  more than half the equity share capital of which is
owned, directly or indirectly, by the holding company;


 


(c)                                   more than half the voting rights of which are exercisable,
directly or indirectly, by the holding company,


 


(d)                                  which is a subsidiary (Tochterunternehmen)
in the meaning of section 290 of the German Commercial Code (Handelsgesetzbuch) or


 


(e)                                   which is a subsidiary of another Subsidiary of the
holding company,


 


and, for this purpose, a company or corporation
or other legal entity shall be treated as being controlled by a holding company
if such holding company has the right or is in a factual position to otherwise
exercise control in respect of the first within the meaning given to it in
section 17 of the German Stock Corporation Act (Aktiengesetz).


 


“Syndication”
means general syndication of the Facilities.


 


“Syndication Date”
means the date (as determined by the Arranger and notified to the Company) on which
primary syndication of the Facilities has been completed and the additional
syndicate members have become bound by this Agreement.


 


“TARGET2”
means the Trans-European Automated Real-time Gross Settlement Express Transfer
payment system which utilises a single shared platform and which was launched
on 19 November 2007.


 


“TARGET Day” means any day on which TARGET2
is open for the settlement of payments in euro.


 


“Tax”
means any tax, levy, impost, duty or other charge or withholding of a similar
nature (including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same).


 


“Termination Date”
means the date which is 5 years after the date of this Agreement


 


“Ti02 Joint Venture”
means the joint venture of the Owners pursuant to the JV Documents.


 


“Total Ancillary Commitments”
means the aggregate of the Ancillary Commitments, being zero at the date of
this Agreement.


 


“Total Ancillary Limit”
means €10,000,000.


 


27
















 


“Total
Commitments” means the aggregate of the Total Facility A
Commitments, the Total Facility B Commitments and the Total Ancillary
Commitments, being €330,000,000 at the date of this Agreement.


 


“Total
Facility A Commitments” means the aggregate of the Facility A
Commitments, being €300,000,000 at the date of this Agreement.


 


“Total
Facility B Commitments” means the aggregate of the Facility B
Commitments, being €30,000,000 at the date of this Agreement.


 


“Transfer
Certificate” means a certificate substantially in the form set out
in Schedule 8 (Form of Transfer
Certificate) or any other form agreed between the Agent and the
Company.


 


“Transfer Date” means, in relation to a
transfer, the later of:


 


(a)                                   the proposed Transfer Date specified in the Transfer
Certificate; and


 


(b)                                  the date on which the Agent executes the Transfer
Certificate.


 


“Unpaid Sum”
means any sum due and payable but unpaid by an Obligor under the Finance
Documents.


 


“US JV Loan”
means:


 


(i)                                   the loan of €6,400,000 from Finnish Holdco to White Pigments LLC; and


 


(ii)                               the loan of €600,000 from Finnish Holdco to Kemira Speciality Inc..


 


“Utilisation”
means a Loan, a Letter of Credit or a Bank Guarantee (but not a utilisation of
an Ancillary Facility).


 


“Utilisation
Date” means the date on which a Utilisation is made.


 


“Utilisation
Request” means a notice substantially in the form set out in
Part I, or (in relation to a letter of credit or bank guarantee) a notice
substantially in the form set out in Part III of Schedule 6 (Requests).


 


“VAT”
means value added tax as provided for in the Value Added Tax Act 1994 and any
other tax of a similar nature.


 


“Working Capital”
has the meaning given to it in Clause 31 (Financial covenants).


 


8.2                           Construction


 


(a)                            Unless a contrary indication appears, any reference in this Agreement
to:


 


(i)                                     the “Agent”, any “Ancillary Lender”, the “Arranger”,
any “Finance  Party”, the “Issuing Bank”,
any “Lender”, any “Obligor”, any “Party” or the “Security
Agent” shall be construed so as to include its successors in title,
permitted assigns and permitted transferees;


 


(ii)                                  “assets” includes present
and future properties, revenues and rights of every description;


 


(iii)                               a Borrower providing “cash cover”
for a Letter of Credit or Bank Guarantee or contingent liability under an
Ancillary Facility means:


 


28

















 


(A)                           a Borrower paying an amount in the currency of the Letter of Credit or
Bank Guarantee or, as the case may be, contingent liability under the Ancillary
Facility to an interest-bearing account in the name of the Borrower and the
following conditions are met:


 


(aa)                           the account is with the Agent or the Issuing Bank (if the cash cover is
to be provided for all the Lenders) or with a Lender (if the cash cover is to
be provided for that Lender) or, in relation to an Ancillary Facility, the
relevant Ancillary Lender;


 


(bb)                          withdrawals from the account may only be made to pay a
Finance Party amounts due and payable to it under this Agreement in respect of
that Letter of Credit, Bank Guarantee or contingent liability under that
Ancillary Facility until no amount is or may be outstanding under that Letter
of Credit, Bank Guarantee or contingent liability under that Ancillary
Facility; and


 


(cc)                            if the Issuing Bank or Ancillary Lender requires, the
Borrower has executed a security document, in form and substance satisfactory
to the Agent or the Finance Party with which that account is held, creating a
first ranking security interest over that account; or


 


(B)                            a Borrower procuring that a bank guarantee be issued in favour of the
Issuing Bank or, as the case may be, the Ancillary Lender (in form and
substance satisfactory to it) by a bank acceptable to the Issuing Bank or, as
the case may be, the Ancillary Lender, acting in its sole discretion.


 


(iv)                              a “Finance  Document” or any other agreement or
instrument is a reference to that Finance Document or other agreement or
instrument as amended, novated, supplemented, extended, restated (however
fundamentally and whether or not more onerously) or replaced and includes any
change in the purpose of, any extension of or any increase in any facility or
the addition of any new facility under that Finance Document or other agreement
or instrument;


 


(v)                                  “indebtedness” includes any
obligation (whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;


 


(vi)                              a “person” includes any
individual, firm, company, corporation, government, state or agency of a state
or any association, trust, joint venture, consortium or partnership (whether or
not having separate legal personality);


 


(vii)                           a Borrower “repaying” or “prepaying” a Letter of Credit, a Bank
Guarantee or Ancillary Outstandings means:


 


(A)                          that Borrower providing cash cover for that Letter of Credit, or Bank
Guarantee or those Ancillary Outstandings;


 


(B)                            the maximum amount payable under the Letter of Credit, Bank Guarantee or
the Ancillary Facility being reduced in accordance with its terms; or


 


29

















 


(C)                            the Issuing Bank or, as the case may be, Ancillary Lender, being
satisfied that it has no further liability under that Letter of Credit, Bank
Guarantee or Ancillary Facility,


 


and the amount by which a Letter of Credit or
Bank Guarantee is, or Ancillary Outstandings are, repaid or prepaid under
sub-paragraphs (vii)(A) and (vii)(B) above is the amount of the
relevant cash cover or reduction;


 


(viii)                        a “regulation” includes any regulation, rule,
official directive, request or guideline (whether or not having the force of
law) of any governmental, intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or organisation;


 


(ix)                                a provision of law is a reference to that provision as amended or
re-enacted; and


 


(x)                                   a time of day is a reference to London time.


 


(b)                           Section, Clause and Schedule headings are for ease of reference only.


 


(c)                            Unless a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document has the
same meaning in that Finance Document or notice as in this Agreement.


 


(d)                           A Default is “continuing” if
it has not been remedied or waived.


 


8.3                           Third
Party Rights


 


A person who is not a Party has no right under
the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the
benefit of any term of this Agreement.


 


30

















 


SECTION 2


 


The
Facilities


 


9.                                 The
Facilities


 


9.1                           The
Facilities


 


Subject
to the terms of this Agreement, the Lenders make available to the Borrowers:


 


(a)                                   (other than the Company) a euro term loan facility in
an aggregate amount equal to the Total Facility A Commitments; and


 


(b)                                  a multicurrency revolving credit facility in an aggregate amount equal
to the Total Facility B Commitments, part of which may,
from time to time and in an aggregate amount at any time up to the Total
Ancillary Limit, be designated as Ancillary Facilities.


 


9.2                           Finance
Parties’ rights and obligations


 


(a)                            The obligations of each Finance Party under the Finance Documents are
several.  Failure by a Finance Party to
perform its obligations under the Finance Documents does not affect the
obligations of any other Party under the Finance Documents.  No Finance Party is responsible for the
obligations of any other Finance Party under the Finance Documents.


 


(b)                           The rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising under the
Finance Documents to a Finance Party from an Obligor shall be a separate and
independent debt.


 


(c)                            A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance Documents.


 


10.                           Purpose


 


10.1                     Purpose


 


(a)                            Each Borrower shall apply all amounts borrowed by it under Facility A
towards refinancing the Existing Debt of the Original Obligors, the acquisition
of shares and the US JV Loan, in each case, in accordance with steps 1 to 17 of
the section of the Structuring Report entitled “JV-Structure for Europe”.


 


(b)                           Each Borrower shall apply all amounts borrowed by it under Facility B to
finance (i) its working capital requirements and/or (ii) its general
corporate purposes, including bank guarantees and letters of credit, provided
that no Borrower shall apply amounts borrowed by it under Facility B to finance
or refinance JV Costs.


 


10.2                     Monitoring


 


No Finance Party is bound to monitor or verify
the application of any amount borrowed pursuant to this Agreement.


 


11.                           Conditions
of Utilisation


 


11.1                     Initial
conditions precedent


 


No Borrower may deliver a Utilisation Request
unless the Agent has received all of the documents and other evidence listed in
Part I of Schedule 5 (Conditions
precedent) in form and 


 


31

















 


substance satisfactory to the Agent. The Agent
shall notify the Company and the Lenders promptly upon being so satisfied.


 


11.2                     Further
conditions precedent


 


(a)                            The Lenders will only be obliged to comply with Clause 12.4 (Lenders’ participation) if on the date of
the Utilisation Request and (in relation to sub paragraphs (ii) and
(iii) of this       Clause 4.2) on the proposed Utilisation Date:


 


(i)                                      until delivery of the Compliance Certificate relating to the period
ending 30 September 2008, the Agent has received a certificate of the
Company (signed by a director);


 


(A)                          specifying proforma EBITDA (or a minimum amount thereof) of the Group
(assuming steps 1 to 17, as set out in the section of the Structuring Report
entitled “JV - Structure for Europe”, have been completed in accordance with
the Structuring Report) for the Relevant Period ending on the Quarter Date
immediately preceding the date of that Utilisation Request; and


 


(B)                           certifying that the ratio of (i) the aggregate of Net Debt on the
date of that Utilisation Request and the amount of the proposed Utilisation to
(ii) EBITDA for the 12 month period ending on the most recent month end
or, if the Utilisation Request is delivered within 7 Business Days of the start
of a month, for the 12 month period ending on the next-to-last month end does
not exceed 4.00:1.00, setting out (in reasonable detail) computations as to
compliance with that ratio;


 


(ii)                                   in the case of a Rollover Loan, no Event of Default is continuing or
would result from the proposed Loan and, in the case of any other Loan, no
Default is continuing or would result from the proposed Loan; and


 


(iii)                                the Repeating Representations to be made by each Obligor are true.


 


11.3                     Conditions
relating to Optional Currencies


 


(a)                            A currency will constitute an Optional Currency in relation to a
Utilisation if:


 


(i)                                     it is readily available in the amount required and freely convertible
into the Base Currency in the Relevant Interbank Market on the Quotation Day
and the Utilisation Date for that Utilisation; and


 


(ii)                                  it is US dollars or has been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to receipt by the Agent of the
relevant Utilisation Request or Selection Notice for that Utilisation.


 


(b)                           If by the Specified Time the Agent has received a written request from
the Company for a currency to be approved under paragraph (a)(ii) above,
the Agent will notify the Lenders of that request by the Specified Time.  Based on any responses received by the Agent
by the Specified Time, the Agent will confirm to the Company by the Specified
Time:


 


(i)                                      whether or not the Lenders have granted their approval; and


 


(ii)                                 if approval has been granted, the minimum amount (and, if required,
integral multiples) for any subsequent Utilisation in that currency.


 


32

















 


11.4                     Maximum
number of Utilisations


 


(a)                            A Borrower may not deliver a Utilisation Request if as a result of the proposed
Utilisation:


 


(i)                                      more than 6 Facility A Loans would be outstanding;


 


(ii)                                   more than 6 Facility B Loans would be outstanding; or


 


(iii)                                more than 10 Letters of Credit and Bank Guarantees would be outstanding.


 


(b)                           A Borrower may not request that a Facility A Loan be divided if, as a
result of the proposed division, more than 6 Facility A Loans would be
outstanding.


 


(c)                            Any Loan made by a single Lender under Clause 15.2 (Unavailability of a currency) shall not be
taken into account in this Clause 11.4.


 


33

















 


SECTION 3


 


UTILISATION


 


12.                           Utilisation
- Loans


 


12.1                     Delivery
of a Utilisation Request


 


A Borrower may utilise a Facility by way of a
Loan by delivery to the Agent of a duly completed Utilisation Request not later
than the Specified Time.


 


12.2                     Completion
of a Utilisation Request


 


(a)                            Each Utilisation Request for a Loan is irrevocable and will not be
regarded as having been duly completed unless:


 


(i)                                      it specifies that it is for a Loan;


 


(ii)                                   it identifies the Facility to be utilised;


 


(iii)                                the proposed Utilisation Date is a Business Day within the Availability
Period applicable to that Facility;


 


(iv)                               the currency and amount of the Utilisation comply with Clause 12.3 (Currency and amount);


 


(v)                                  the proposed Interest Period complies with Clause 20 (Interest Periods); and


 


(vi)                               it specifies the account and bank (which must be in the principal
financial centre of the country of the currency of the Utilisation or, in the
case of euro, the principal financial centre of a Participating Member State in
which banks are open for general business on that day or London) to which the
proceeds of the Utilisation are to be credited.


 


(b)                           Only one Loan may be requested in each Utilisation Request.


 


12.3                     Currency
and amount


 


(a)                            The currency specified in a Utilisation Request must be the Base
Currency or, in relation to Facility B, the Base Currency or an Optional
Currency.


 


(b)                           The amount of the proposed Loan must be:


 


(i)                                    if the currency selected is the Base Currency, a minimum of €10,000,000
(and integral multiples thereafter) for Facility A and €5,000,000 (and integral
multiples of €1,000,000 thereafter) for Facility B or in either case, if less,
the Available Facility or the amounts set out in paragraph (c) of this
Clause 5.3;


 


(ii)                                   if the currency selected is US dollars, a minimum of $5,000,000 (and
integral multiples of $1,000,000 thereafter) or, if less, the Available
Facility;


 


(iii)                              if the currency selected is any other Optional Currency, the minimum
amount (and, if required, integral multiple) specified by the Agent pursuant to
paragraph (b)(ii) of Clause 11.3 (Conditions
relating to Optional Currencies) or, if less, the Available
Facility; and


 


(iv)                             in any event such that its Base Currency Amount is less than or equal to
the Available Facility; and


 


(v)                                in compliance with Clause 5.3(c).


 


34

















 


(c)                            Each Borrower may borrow Facility A Loans in the maximum aggregate
amounts as follows:


 


	
  Borrower

  	
   

  	
  Aggregate amount of Facility A Loans (€)

  	
   

  
	
  Sachtleben Chemie

  	
   

  	
  152,500,000

  	
   

  
	
  Kemira Pigments

  	
   

  	
  53,800,000

  	
   

  
	
  Finnish HoldCo

  	
   

  	
  43,700,000

  	
   

  



 


unless set out otherwise in the Structuring
Report and agreed with the Agent.


 


12.4                     Lenders’
participation


 


(a)                            If the conditions set out in this Agreement have been met, each Lender
shall make its participation in each Loan available by the Utilisation Date
through its Facility Office.


 


(b)                           The amount of each Lender’s participation in each Loan will be equal to
the proportion borne by its Available Commitment to the Available Facility
immediately prior to making the Loan.


 


(c)                            The Agent shall determine the Base Currency Amount of each Loan which is
to be made in an Optional Currency and shall notify each Lender of the amount,
currency and the Base Currency Amount of each Loan and the amount of its
participation in that Loan, in each case, by the Specified Time.


 


12.5                     Cancellation
of Commitment


 


(a)                            The Total Facility A Commitments shall be immediately cancelled at the
end of the Availability Period for Facility A.


 


(b)                           The Total Facility B Commitments shall be immediately cancelled at the
end of the Availability Period for Facility B.


 


13.                           Utilisation
- Letters of Credit and Bank Guarantees


 


13.1                     General


 


(a)                            In this Clause 13 and Clause 14 (Letters
of Credit and Bank Guarantees):


 


(i)                                      “Approved Beneficiary” means a
beneficiary of a Letter of Credit or Bank Guarantee approved by the Issuing
Bank and the Agent;


 


(ii)                                   “Expiry Date” means, for a
Letter of Credit or Bank Guarantee, the last day of its Term;


 


(iii)                                “Proportion” means, in
relation to a Lender in respect of any Letter of Credit or Bank Guarantee, the
proportion (expressed as a percentage) borne by that Lender’s Available
Commitment under Facility B to the Available Facility under Facility B
immediately prior to the issue of that Letter of Credit or Bank Guarantee,
adjusted to reflect any assignment or transfer under this Agreement to or by
that Lender;


 


(iv)                               “Renewal Request” means a
written notice delivered to the Agent in accordance with Clause 13.7 (Renewal of a Letter of Credit or Bank Guarantee);
and


 


(v)                                  “Term” means each period
determined under this Agreement for which the Issuing Bank is under a liability
under a Letter of Credit or Bank Guarantee.


 


35

















 


(b)                           Any reference in this Agreement to:


 


(i)                                      the Interest Period of a Letter of Credit or Bank Guarantee will be
construed as a reference to the Term of that Letter of Credit or Bank
Guarantee;


 


(ii)                                   an amount borrowed includes any amount utilised by way of Letter of
Credit or Bank Guarantee;


 


(iii)                                a Utilisation made or to be made to a Borrower includes a Letter of
Credit or Bank Guarantee issued on its behalf;


 


(iv)                               a Lender funding its participation in a Utilisation includes a Lender
participating in a Letter of Credit or Bank Guarantee;


 


(v)                                  amounts outstanding under this Agreement include amounts outstanding
under or in respect of any Letter of Credit or Bank Guarantee;


 


(vi)                               an outstanding amount of a Letter of Credit or Bank Guarantee at any
time is the maximum amount that is or may be payable by a Borrower in respect
of that Letter of Credit or Bank Guarantee at that time;


 


(c)                            Clause 12 (Utilisation - Loans)
does not apply to a Utilisation by way of Letter of Credit or Bank Guarantee.


 


(d)                           In determining the amount of the Available Facility and a Lender’s
Proportion of a proposed Letter of Credit or Bank Guarantee for the purposes of
this Agreement, the Available Commitment of a Lender will be calculated
ignoring any cash cover provided for outstanding Letters of Credit or Bank
Guarantees.


 


13.2                     Facility
B


 


Facility B may be utilised by way of Loans,
Letters of Credit and Bank Guarantees.


 


13.3                     Delivery
of a Utilisation Request for Letters of Credit or Bank Guarantees


 


A Borrower may request a Letter of Credit or
Bank Guarantee to be issued by delivery to the Agent of a duly completed
Utilisation Request substantially in the form of Part III of Schedule 6 (Utilisation Request - Letters of Credit and Bank
Guarantees) not later than the Specified Time.


 


13.4                     Completion
of a Utilisation Request for Letters of Credit and Bank Guarantees


 


Each Utilisation Request for a Letter of Credit
or Bank Guarantee is irrevocable and will not be regarded as having been duly
completed unless:


 


(a)                                   it specifies that it is for a Letter of Credit or Bank Guarantee;


 


(b)                                  the proposed Utilisation Date is a Business Day within the Availability
Period applicable to Facility B;


 


(c)                                   the currency and amount of the Letter of Credit or Bank Guarantee comply
with Clause 12.3 (Currency and amount);


 


(d)                                  the form of Letter of Credit or Bank Guarantee is attached;


 


(e)                                   the Expiry Date of the Letter of Credit or Bank Guarantee falls on or
before the date falling three Months after the Termination Date (for the
avoidance of doubt, the relevant 


 


36

















 


Borrower
shall provide cash cover from the Termination Date in accordance with Clause
10.2 (Repayment of Facility B Loans));


 


(f)                                     the delivery instructions for the Letter of Credit or Bank Guarantee are
specified; and


 


(g)                                  the beneficiary of the Letter of Credit or Bank Guarantee is an Approved
Beneficiary.


 


13.5                     Currency
and amount


 


(a)                            The currency specified in a Utilisation Request must be the Base
Currency or an Optional Currency.


 


(b)                           The amount of the proposed Letter of Credit or Bank Guarantee must be an
amount whose Base Currency Amount is not more than the Available Facility and
which is:


 


(i)                                    if the currency selected is the Base Currency, a minimum of €100,000 or,
if less, the Available Facility;


 


(ii)                                 if the currency selected is US dollars, a minimum of $100,000 or, if
less, the Available Facility; or


 


(iii)                              if the currency selected is any other Optional Currency, the minimum
amount (and, if required, integral multiple) specified by the Agent pursuant to
paragraph (b)(ii) of Clause 11.3 (Conditions
relating to Optional Currencies) or, if less, the Available
Facility,


 


or, if less, such amount as will result in the aggregate Base Currency
Amounts of all outstanding Letters of Credit and all outstanding Bank
Guarantees not exceeding the Letter of Credit and Bank Guarantee Limit.


 


13.6                     Issue
of Letters of Credit or Bank Guarantees


 


(a)                            If the conditions set out in this Agreement have been met, the Issuing
Bank shall issue the Letter of Credit or Bank Guarantee on the Utilisation
Date.


 


(b)                           The Issuing Bank will only be obliged to comply with paragraph
(a) above if on the date of the Utilisation Request or Renewal Request and
on the proposed Utilisation Date:


 


(i)                                      in the case of a Letter of Credit or Bank Guarantee renewed in
accordance with Clause 13.7 (Renewal of a
Letter of Credit or Bank Guarantee), no Event of Default is
continuing or would result from the proposed Utilisation and, in the case of
any other Utilisation, no Default is continuing or would result from the
proposed Utilisation; and


 


(ii)                                   the Repeating Representations to be made by each Obligor are true.


 


(c)                            The amount of each Lender’s participation in each Letter of Credit or
Bank Guarantee will be equal to the proportion borne by its Available
Commitment under Facility B to the Available Facility under Facility B
immediately prior to the issue of the Letter of Credit or Bank Guarantee.


 


(d)                           The Agent shall determine the Base Currency Amount of each Letter of
Credit or Bank Guarantee which is to be issued in an Optional Currency and
shall notify the Issuing Bank and each Lender of the details of the requested Letter
of Credit or Bank Guarantee and its participation in that Letter of Credit or
Bank Guarantee by the Specified Time.


 


37
















 


13.7                     Renewal
of a Letter of Credit or Bank Guarantees


 


(a)                            A Borrower may request any Letter of Credit or Bank Guarantee issued on
its behalf be renewed by delivery to the Agent of a Renewal Request by the
Specified Time.


 


(b)                           The Finance Parties shall treat any Renewal Request in the same way as a
Utilisation Request for a Letter of Credit or Bank Guarantee except that the
conditions set out in paragraphs (d) and (g) of Clause 13.4 (Completion of a Utilisation Request for Letters of
Credit  or Bank Guarantees) shall not
apply.


 


(c)                            The terms of each renewed Letter of Credit or Bank Guarantee shall be
the same as those of the relevant Letter of Credit or Bank Guarantee
immediately prior to its renewal, except that:


 


(i)                                      its amount may be less than the amount of the Letter of Credit or Bank
Guarantee immediately prior to its renewal; and


 


(ii)                                   its Term shall start on the date which was the Expiry Date of the Letter
of Credit or Bank Guarantee immediately prior to its renewal, and shall end on
the proposed Expiry Date specified in the Renewal Request.


 


(d)                           If the conditions set out in this Agreement have been met, the Issuing
Bank shall amend and re-issue any Letter of Credit or Bank Guarantee pursuant
to a Renewal Request.


 


13.8                     Revaluation
of Letters of Credit and Bank Guarantees


 


(a)                            If any Letter of Credit or Bank Guarantee is denominated in an Optional
Currency, the Agent shall at six monthly intervals after the date of this
Agreement, recalculate the Base Currency Amount of each Letter of Credit and
Bank Guarantee by notionally converting into the Base Currency the outstanding
amount of that Letter of Credit or Bank Guarantee on the basis of the Agent’s
Spot Rate of Exchange on the date of calculation.


 


(b)                           A Borrower shall, (i) if the calculation under paragraph
(a) above shows that the Base Currency Amount of such Letters of Credit or
Bank Guarantees exceeds an amount equal to 105 per cent. of the Total Facility
B Commitments; and (ii) if requested by the Agent within 3 days of any
calculation under paragraph (a) above, ensure that within three Business
Days sufficient Facility B Utilisations are prepaid to prevent the Base
Currency Amount of the Facility B Utilisations exceeding an amount equal to the
Total Facility B Commitments following any adjustment to a Base Currency Amount
under paragraph (a) above.


 


14.                           Letters
of Credit and Bank Guarantees


 


14.1                     Immediately
payable


 


If a Letter of Credit or Bank Guarantee or any
amount outstanding under a Letter of Credit or Bank Guarantee is expressed to
be immediately payable, the Borrower that requested the issue of that Letter of
Credit or Bank Guarantee shall repay or prepay that amount immediately.


 


14.2                     Assignments
and transfers


 


(a)                            Notwithstanding any other provision of this Agreement, the consent of
the Issuing Bank is required for any assignment or transfer of any Lender’s
rights and/or obligations in respect of any outstanding Letter of Credit or
Bank Guarantee.


 


38

















 


(b)                           If paragraph (a) and the conditions and procedure for transfer
specified in Clause 34 (Changes to the
Lenders) are satisfied, then on the Transfer Date the Issuing Bank
and the New Lender shall acquire the same rights and assume the same
obligations between themselves as they would have acquired and assumed had the
New Lender been an Original Lender with the rights and/or obligations acquired
or assumed by it as a result of the transfer and to that extent the Issuing
Bank and the Existing Lender shall each be released from further obligations to
each other under this Agreement.


 


14.3                     Fee
payable in respect of Letters of Credit and Bank Guarantees


 


(a)                            Each Borrower shall (and the Company shall ensure that each Borrower
shall) pay to the Issuing Bank a fronting fee in respect of each Letter of
Credit and Bank Guarantee requested by it in the amount and at the times agreed
in the letter dated on or about the date of this Agreement between the Issuing
Bank and the Company.


 


(b)                           Each Borrower shall pay to the Agent (for the account of each Lender) a
letter of credit fee in arrear computed at the rate of the applicable Margin on
the outstanding amount of each Letter of Credit or Bank Guarantee requested by
it for the period from the issue of that Letter of Credit or Bank Guarantee
until its Expiry Date.  This fee shall be
distributed according to each Lender’s Proportion of that Letter of Credit or
Bank Guarantee.


 


(c)                            The accrued letter of credit fee on the Letters of Credit and Bank
Guarantees shall be consolidated and payable on the last day of each successive
period of three months (or such shorter period as shall end on the Expiry Date
for that Letter of Credit or Bank Guarantee) starting on the date of this
Agreement.


 


(d)                           If a Borrower cash covers any part of a Letter of Credit or Bank Guarantee
then:


 


(i)                                    the fronting fee payable to the Issuing Bank and the letter of credit
fee payable for the account of each Lender shall continue to be payable until
the expiry of the Letter of Credit or Bank Guarantee;


 


(ii)                                 the Borrower will be entitled to withdraw the interest accrued on the
cash cover to pay those fees.


 


14.4                     Claims
under a Letter of Credit or Bank Guarantee


 


(a)                            Each Borrower irrevocably and unconditionally authorises the Issuing
Bank to pay any claim made or purported to be made under a Letter of Credit or
Bank Guarantee requested by it and which appears on its face to be in order (a
“claim”).


 


(b)                           Each Borrower which requested a Letter of Credit or Bank Guarantee shall
immediately on demand pay to the Agent for the Issuing Bank an amount equal to
the amount of any claim under that Letter of Credit or Bank Guarantee.


 


(c)                            Each Borrower acknowledges that the Issuing Bank:


 


(i)                                    is not obliged to carry out any investigation or seek any confirmation
from any other person before paying a claim; and


 


39

















 


(ii)                                 deals in documents only and will not be concerned with the legality of a
claim or any underlying transaction or any available set-off, counterclaim or
other defence of any person.


 


(d)                           The obligations of a Borrower under this Clause will not be affected by:


 


(i)                                      the sufficiency, accuracy or genuineness of any claim or any other
document; or


 


(ii)                                   any incapacity of, or limitation on the powers of, any person signing a
claim or other document.


 


14.5                     Indemnities


 


(a)                            Each Borrower shall immediately on demand indemnify the Issuing Bank
against any cost, loss or liability incurred by the Issuing Bank (otherwise
than by reason of the Issuing Bank’s gross negligence or wilful misconduct) in
acting as the Issuing Bank under any Letter of Credit or Bank Guarantee
requested by that Borrower.


 


(b)                           Each Lender shall (according to its Proportion) immediately on demand
indemnify the Issuing Bank against any cost, loss or liability incurred by the
Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence
or wilful misconduct) in acting as the Issuing Bank under any Letter of Credit
or Bank Guarantee (unless the Issuing Bank has been reimbursed by an Obligor
pursuant to a Finance Document).


 


(c)                            If any Lender is not permitted (by its constitutional documents or any
applicable law) to comply with paragraph (b) above), then that Lender will
not be obliged to comply with paragraph (b) and shall instead be deemed to
have taken, on the date the Letter of Credit or Bank Guarantee is issued (or if
later, on the date the Lender’s participation in the Letter of Credit or Bank
Guarantee is transferred or assigned to the Lender in accordance with the terms
of this Agreement), an undivided interest and participation in the Letter of
Credit or Bank Guarantee in an amount equal to its Proportion of that Letter of
Credit or Bank Guarantee.  On receipt of
demand from the Agent, that Lender shall pay to the Agent (for the account of
the Issuing Bank) an amount equal to its Proportion of the amount demanded
under paragraph (b) above.


 


(d)                           The Borrower which requested a Letter of Credit or Bank Guarantee shall
immediately on demand reimburse any Lender for any payment it makes to the
Issuing Bank under this Clause 14.5 (Indemnities)
in respect of that Letter of Credit or Bank Guarantee.


 


(e)                            The obligations of each Lender under this Clause are continuing
obligations and will extend to the ultimate balance of sums payable by that
Lender in respect of any Letter of Credit or Bank Guarantee, regardless of any
intermediate payment or discharge in whole or in part.


 


(f)                              The obligations of any Lender under this Clause  will not be affected by any act, omission,
matter or thing which, but for this Clause, would reduce, release or prejudice
any of its obligations under this Clause 
(without limitation and whether or not known to it or any other person)
including:


 


(i)                                      any time, waiver or consent granted to, or composition with, any
Obligor, any beneficiary under a Letter of Credit or Bank Guarantee or other
person;


 


40

















 


(ii)                                 the release of any other Obligor or any other person under the terms of
any composition or arrangement with any creditor of any member of the Group;


 


(iii)                              the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against, or
security over assets of, any Obligor, any beneficiary under a Letter of Credit
or Bank Guarantee or other person or any non-presentation or non-observance of
any formality or other requirement in respect of any instrument or any failure
to realise the full value of any security;


 


(iv)                             any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor, any beneficiary
under a Letter of Credit or Bank Guarantee or any other person;


 


(v)                                any amendment (however fundamental) or replacement of a Finance
Document, any Letter of Credit or Bank Guarantee or any other document or
security;


 


(vi)                             any unenforceability, illegality or invalidity of any obligation of any
person under any Finance Document, any Letter of Credit, any Bank Guarantee or
any other document or security; or


 


(vii)                          any insolvency or similar proceedings.


 


14.6                     Rights
of contribution


 


No Obligor will be entitled to any right of
contribution or indemnity from any Finance Party in respect of any payment it
may make under this Clause 7.


 


14.7                     Role
of the Issuing Bank


 


(a)                            Nothing in this Agreement constitutes the Issuing Bank as a trustee or
fiduciary of any other person.


 


(b)                           The Issuing Bank shall not be bound to account to any Lender for any sum
or the profit element of any sum received by it for its own account.


 


(c)                            The Issuing Bank may accept deposits from, lend money to and generally
engage in any kind of banking or other business with any member of the Group.


 


(d)                           The Issuing Bank may rely on:


 


(i)                                    any representation, notice or document believed by it to be genuine,
correct and appropriately authorised; and


 


(ii)                                 any statement made by a director, authorised signatory or employee of
any person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify.


 


(e)                            The Issuing Bank may engage, pay for and rely on the advice or services
of any lawyers, accountants, surveyors or other experts.


 


(f)                              The Issuing Bank may act in relation to the Finance Documents through
its personnel and agents.


 


(g)                           The Issuing Bank is not responsible for:


 


41

















 


(i)                                    the adequacy, accuracy and/or completeness of any information (whether
oral or written) supplied by the Issuing Bank, the Agent, the Security Agent,
the Arranger, an Obligor or any other person given in or in connection with any
Finance Document or the Information Memorandum; or


 


(ii)                                 the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of or in connection with any Finance Document.


 


14.8                     Exclusion
of liability


 


(a)                            Without limiting paragraph (b) below, the Issuing Bank will not be
liable for any action taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful misconduct.


 


(b)                           No Party (other than the Issuing Bank) may take any proceedings against
any officer, employee or agent of the Issuing Bank in respect of any claim it
might have against the Issuing Bank or in respect of any act or omission of any
kind by that officer, employee or agent in relation to any Finance Document and
any officer, employee or agent of the Issuing Bank may rely on this Clause.


 


14.9                     Credit
appraisal by the Lenders


 


Without affecting the responsibility of any
Obligor for information supplied by it or on its behalf in connection with any
Finance Document, each Lender confirms to the Issuing Bank that it has been,
and will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with
any Finance Document, including but not limited to, those listed in paragraphs
(a) to (d) of Clause 36.15 (Credit
appraisal by the Lenders).


 


14.10               Address
for notices


 


The address and fax number (and the department
or officer, if any, for whose attention the communication is to be made) of the
Issuing Bank for any communication or document to be made or delivered under or
in connection with the Finance Documents is that notified in writing to the
Agent prior to the date of this Agreement or any substitute address, fax number
or department or officer as the Issuing Bank may notify to the Agent by not
less than five Business Days’ notice.


 


14.11               Amendments
and Waivers


 


Notwithstanding any other provision of this
Agreement, an amendment or waiver which relates to the rights or obligations of
the Issuing Bank may not be effected without the consent of the Issuing Bank.


 


15.                           Optional
Currencies


 


15.1                     Selection
of currency


 


A Borrower (or the Company on behalf of a
Borrower) shall select the currency of a Utilisation in the Utilisation Request
for a Facility B Loan.


 


15.2                     Unavailability
of a currency


 


If before the Specified Time on any Quotation
Day:


 


42

















 


(a)                                   a Lender notifies the Agent that the Optional Currency requested is not
readily available to it in the amount required; or


 


(b)                                  a Lender notifies the Agent that compliance with its obligation to
participate in a Loan in the proposed Optional Currency would contravene a law
or regulation applicable to it,


 


the Agent will give notice to the relevant
Borrower to that effect by the Specified Time on that day. In this event, any
Lender that gives notice pursuant to this Clause 15.2 will be required to
participate in the Loan in the Base Currency (in an amount equal to that
Lender’s proportion of the Base Currency Amount or, in respect of a Rollover
Loan, an amount equal to that Lender’s proportion of the Base Currency Amount
of the Rollover Loan that is due to be made) and its participation will be
treated as a separate Loan denominated in the Base Currency during that
Interest Period.


 


16.                           Ancillary
Facilities


 


16.1                     Establishment of Ancillary Facilities


 


One or more Ancillary Facilities may from time to time be established in
favour of one or more Borrowers in accordance with this Clause 16 by
designating all or part of the Facility B Commitment of a Lender as an
Ancillary Commitment.


 


16.2                     Types of Ancillary Facility


 


Each Ancillary Facility may comprise any of the following (or any
combination of the following):


 


(a)                                   guarantee, bonding or documentary or standby letter of credit
facilities; and


 


(b)                                  such other facilities as may be required and as the Agent and the
relevant Ancillary Lender may agree.


 


16.3                     Request for Ancillary Facilities


 


(a)                            The Company may, at any time, request the establishment of an Ancillary
Facility by delivery to the Agent of a duly completed Ancillary Facility
Request.


 


(b)                           An Ancillary Facility Request relating to a proposed Ancillary Facility
will not be regarded as duly completed unless it identifies:


 


(i)                                    the Borrower(s) under that Ancillary Facility;


 


(ii)                                 the Ancillary Lender which is to make available that Ancillary Facility;


 


(iii)                              the type or types of facility to comprise that Ancillary Facility (which
must comply with Clause 16.2 (Types of
Ancillary Facility));


 


(iv)                               the date (the “Commencement Date”)
on which that Ancillary Facility is to become available (which must be a date
on which Facility B is available to be drawn and must not be less than 10
Business Days after the date on which the Agent receives the Ancillary Facility
Request);


 


(v)                                  the expiry date of that Ancillary Facility (which must fall on or before
the Termination Date);


 


(vi)                               the amount of the Ancillary Commitment (which must be denominated in the
Base Currency) which is to apply to that Ancillary Facility;


 


43

















 


(vii)                          the currency or currencies (which must comply with paragraph
(c) below) in which utilisations under that Ancillary Facility may be
requested;


 


(viii)                       the margin, commitment fee and other fees payable in respect of that
Ancillary Facility; and


 


(ix)                               such other details in relation to that Ancillary Facility as the Agent
may reasonably require.


 


(c)                            An Ancillary Facility shall only be available for utilisation in the
Base Currency or a Currency which:


 


(i)                                    is readily available in the amount required and freely convertible into
the Base Currency in the Relevant Interbank Market on the date for utilisation
of that Ancillary Facility; and


 


(ii)                                 it is US Dollars or has been approved by the Agent acting on the
instructions of all the Facility B Lenders on or prior to receipt by the Agent
of the Ancillary Facility Request for that Ancillary Facility.


 


(d)                           The Agent shall, promptly after receipt by it of an Ancillary Facility
Request, notify each Lender of that Ancillary Facility Request.


 


16.4                     Grant of Ancillary Facility


 


The Lender identified in a duly completed Ancillary Facility Request
shall become an Ancillary Lender authorised to make the proposed Ancillary
Facility available with effect from the proposed Commencement Date, if the
following conditions are fulfilled:


 


(a)                                 the proposed Ancillary Commitment under that Ancillary Facility is equal
to or less than the Available Commitment of that Lender under Facility B on
that Commencement Date;


 


(b)                                the proposed Ancillary Commitment under that Ancillary Facility will
not, when aggregated with the Ancillary Commitments under all other Ancillary
Facilities in effect on that Commencement Date, exceed the Total Ancillary
Limit; and


 


(c)                                 the proposed Ancillary Lender has notified the Agent by that
Commencement Date that it agrees to make available that Ancillary Facility.


 


For the avoidance of doubt, the maximum amount payable under
(1) any guarantee, bonding or documentary or standby, letter of credit
issued under, or any other facilities made available under the Ancillary
Facilities, (2) any Bank Guarantee issued under Facility B and
(3) any Letter of Credit issued under Facility B, cannot exceed
€10,000,000 in aggregate.


 


16.5                     Adjustments to Facility B Commitment


 


(a)                            The Facility B Commitment of a Lender which is an Ancillary Lender shall
be reduced by the amount of its Ancillary Commitments.


 


(b)                           If and to the extent that:


 


(i)                                    any Ancillary Facility expires, or is cancelled (in whole or in part) in
accordance with Clause 16.8 (Voluntary
cancellation of Ancillary Facilities); and


 


(ii)                                 no amount is or may be payable to or by the Ancillary Lender in respect
of that Ancillary Facility (or the relevant part of it),


 


44

















 


the Facility B Commitment of the relevant Lender will immediately be
increased by an amount equal to the amount of the Ancillary Commitment of that
Ancillary Facility (or, if less, that part of it which has expired or been
cancelled).


 


16.6                     Terms of Ancillary Facilities


 


(a)                            The terms applicable to each Ancillary Facility shall be as agreed
between the relevant Ancillary Lender and the relevant Borrower (as set out in
the applicable Ancillary Facility Document), provided that:


 


(i)                                    those terms shall be consistent with this Clause 16 and the details set
out in the Ancillary Facility Request;


 


(ii)                                 utilisations under an Ancillary Facility shall be used only to finance
(i) its working capital requirements and/or (ii) its general
corporate purposes;


 


(iii)                              the rate of interest, fees and other remuneration in respect of the
Ancillary Facility shall be based upon the normal market rates and terms from
time to time of that Ancillary Lender; and


 


(iv)                             cancellation, termination or enforcement of the Ancillary Facility shall
only occur as described in Clause 16.8 (Voluntary
cancellation of Ancillary Facilities), Clause 18  (Prepayment
and cancellation)  or
Clause 33.16 (Acceleration).


 


(b)                           Any material variation to any Ancillary Facility (including any proposed
increase or reduction in the Ancillary Commitment) shall be in accordance with
and subject to this Clause 16.


 


(c)                            An amendment or waiver of any term of an Ancillary Facility shall not
require the consent of any Finance Party other than the relevant Ancillary
Lender unless the amendment or waiver relates to a matter which would require
an amendment to this Agreement. In that case, the provisions of this Agreement
relating to amendments and waivers will apply.


 


(d)                           In the case of any inconsistency between any term of an Ancillary
Facility and any term of this Agreement, this Agreement shall prevail.


 


16.7                     Limits on Ancillary Facilities


 


The Company shall ensure that:


 


(a)                                 the aggregate of all Ancillary Commitments does not at any time exceed
the Total Ancillary Limit;


 


(b)                                the Ancillary Outstandings under any Ancillary Facility do not at any
time exceed the Ancillary Commitment under that Ancillary Facility; and


 


(c)                                 the aggregate of the Ancillary Outstandings in respect of an Ancillary
Facility and the relevant Ancillary Lender’s share of all other outstanding
Facility B Utilisations do not at any time exceed that Ancillary Lender’s
Facility B Commitment.


 


16.8                     Voluntary cancellation of Ancillary Facilities


 


The Company may, if it gives the Agent and the relevant Ancillary Lender
not less than 5 Business Days’ prior notice, cancel the whole or any part of
the Ancillary Commitment under an Ancillary Facility.


 


45

















 


16.9                     Notice in respect of Ancillary Facilities


 


(a)                            Each Ancillary Lender shall promptly notify the Agent of:


 


(i)                                    the establishment by it of any Ancillary Facility and the applicable
Commencement Date;


 


(ii)                                 the amount of any Ancillary Facility which is cancelled or expires and
the date of any such cancellation or expiry; and


 


(iii)                              any other information relating to any Ancillary Facility provided by it
as the Agent may request, including the Ancillary Outstandings from time to time.


 


(b)                           The Agent may assume, unless it has received notice to the contrary in
its capacity as agent for the Lenders, that no Ancillary Facility has expired
or been cancelled in whole or part.


 


(c)                            Each Obligor consents to all information described in paragraph
(a) above being disclosed to the Finance Parties.


 


16.10               Ancillary Outstandings


 


The relevant Borrower under an Ancillary Facility shall repay or pay on
the due date each amount payable under that Ancillary Facility.


 


46

















 


SECTION 4


 


REPAYMENT,
PREPAYMENT AND CANCELLATION


 


17.                           Repayment


 


17.1                     Repayment
of Facility A Loans


 


(a)                            The Facility A Loans shall be repaid by Borrowers which have drawn the
Facility A Loans on the following dates in an aggregate amount equal to the
amounts set out in the following table:


 


	
  Facility A Repayment Date

  	
   

  	
  Facility A Repayment Instalment (€)

  	
   

  
	
  12 months after the
  date of this Agreement

  	
   

  	
  5,000,000

  	
   

  
	
  18 months after the
  date of this Agreement

  	
   

  	
  5,000,000

  	
   

  
	
  24 months after the
  date of this Agreement

  	
   

  	
  10,000,000

  	
   

  
	
  30 months after the
  date of this Agreement

  	
   

  	
  10,000,000

  	
   

  
	
  36 months after the
  date of this Agreement

  	
   

  	
  10,000,000

  	
   

  
	
  42 months after the
  date of this Agreement

  	
   

  	
  15,000,000

  	
   

  
	
  48 months after the
  date of this Agreement

  	
   

  	
  15,000,000

  	
   

  
	
  54 months after the
  date of this Agreement

  	
   

  	
  15,000,000

  	
   

  
	
  60 months after the
  date of this Agreement

  	
   

  	
  215,000,000

  	
   

  



 


(b)                           If the aggregate amount of the Facility A Loans outstanding at the end
of the Availability Period for Facility A is less than €300,000,000, the amount
of the Facility A Repayment Instalments shall be reduced in inverse
chronological order.


 


(c)                            If, in relation to a Facility A Repayment Date, the aggregate amount of
the Facility A Loans made to the Borrowers exceeds the Facility A Repayment
Instalment to be repaid by the Borrowers, the Company may, if it gives the
Agent not less than five Business Days’ prior notice, select which of those
Facility A Loans will be wholly or partially repaid so that the Facility A
Repayment Instalment is repaid on the relevant Facility A Repayment Date in
full. The Company may not make a selection if as a result more than one
Facility A Loan will be partially repaid.


 


(d)                           No Borrower may reborrow any part of Facility A which is repaid.


 


17.2                     Repayment
of Facility B Loans


 


(a)                            Each Borrower which has drawn a Facility B Loan shall repay that Loan on
the last day of its Interest Period.


 


(b)                           Any Facility B Loan remaining outstanding on the Termination Date
applicable to Facility B shall be repaid on that date.


 


(c)                            Each Borrower shall repay each Letter of Credit or Bank Guarantee
requested by that Borrower on the Termination Date applicable to Facility B.


 


47
















 


17.3       Repayment of Ancillary Facilities


 


On the Termination Date each Borrower under
an Ancillary Facility shall repay all amounts (if any) owing or outstanding
under that Ancillary Facility.


 


18.         Prepayment
and cancellation


 


18.1       Illegality
in relation to a Lender or the Issuing Bank


 


If it becomes
unlawful in any applicable jurisdiction for a Lender or the Issuing Bank to
perform any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in any Utilisation or to issue or leave outstanding
any Letter of Credit or Bank Guarantee:


 


(a)            that Lender or the Issuing Bank shall promptly notify
the Agent upon becoming aware of that event;


 


(b)           upon the Agent notifying the Company, the Commitment
of that Lender will be immediately cancelled and the Issuing Bank shall not be
obliged to issue any Letter of Credit or Bank Guarantee;


 


(c)            each Borrower shall repay that Lender’s participation
in the Utilisations made to that Borrower on the last day of the Interest
Period for each Utilisation occurring after the Agent has notified the Company
or, if earlier, the date specified by the Lender in the notice delivered to the
Agent (being no earlier than the last day of any applicable grace period
permitted by law); and


 


(d)           if the unlawfulness relates to the Issuing Bank and no
other Lender has
agreed to be an Issuing Bank pursuant to the terms of this Agreement, upon the
Agent notifying the Company, Facility B shall cease to be available for the
issue of Letters of Credit or Bank Guarantees and the Company shall procure
that each of the relevant Borrowers shall use its best endeavours to procure
the release of each Letter of Credit or Bank Guarantee issued by that Issuing
Bank and outstanding at such time.


 


 


18.2       Illegality in relation to an Ancillary Lender


 


If it becomes unlawful in any applicable
jurisdiction for an Ancillary Lender to perform any of its obligations as
contemplated by this Agreement or any Ancillary Facility Document or to fund or
maintain its participation in any utilisation under any Ancillary Facility:


 


(a)            that Ancillary
Lender shall promptly notify the Agent upon becoming aware of that event;


 


(b)           upon the Agent
notifying the Company:


 


(i)           the Ancillary
Commitment of that Ancillary Lender will be immediately cancelled; and


 


(ii)          each Borrower
shall use its best endeavours to procure the release of any outstanding letter
of credit, guarantee or other instrument issued by that Ancillary Lender in
respect of that Borrower under each Ancillary Facility made available by that
Ancillary Lender and repay all amounts, if any, payable under each such
Ancillary Facility on the earlier of the next date on which any payment or
repayment is due under that facility occurring after the Agent has notified the
Company or the date specified by the Ancillary Lender in the notice delivered
to 


 


48

















 


the Agent (being
no earlier than the last day of any applicable grace period permitted by law).


 


18.3       Change of control


 


(a)         If a Change of Control Event occurs:


 


(i)             the Company shall promptly notify the Agent upon
becoming aware of that event;


 


(ii)            the Issuing Bank shall not be obliged to issue any
Letter of Credit or Bank Guarantee;


 


(iii)           a Lender shall not be obliged to fund a Utilisation (except
for a Rollover Loan) and an Ancillary Lender shall not be obliged to fund a
utilisation of an Ancillary Facility; and


 


(iv)          if a Lender so requires and notifies the Agent within
30 days of the Company notifying the Agent of the occurrence of a Change of
Control Event, the Agent shall promptly notify the Company of the notification
by that Lender and the Company and that Lender shall negotiate in good faith
the continuation of the participation of the respective Lender in the
Facilities. If no agreement is reached within 30 days of the Lender notifying
the Agent, the Agent shall, by not less than 10 days’ notice to the Company
(the date specified in such notice being the “Relevant
Lender Cancellation Date”), cancel the Commitment of that Lender and
declare the participation of that Lender in all outstanding Utilisations,
together with accrued interest, and all other amounts accrued under the Finance
Documents immediately due and payable, whereupon the Commitment of that Lender
will be cancelled and all such outstanding amounts will become immediately due
and payable and declare that cash cover in respect of that Lender’s
participation in each Letter of Credit or Bank Guarantee is immediately due and
payable whereupon it shall become immediately due and payable provided that the Company may, by written notice to the
Agent and such Lender given in the period from the date such Lender notifies
the Agent following the occurrence of a Change of Control Event to the date 3
Business Days prior to the Relevant Lender Cancellation Date, replace such
Lender by requiring such Lender to (and such Lender shall) transfer pursuant to
Clause 26 (Changes to the Lenders)
all (and not part only) of its rights and obligations under this Agreement to a
Lender or other bank, financial institution, trust, fund or other entity (a “Replacement Lender”) selected by the
Company, and which is acceptable to the Agent (acting reasonably) and (in the
case of any transfer of a Facility B Commitment) the Issuing Bank, which
confirms its willingness to assume and does assume all the obligations of the
transferring Lender (including the assumption of the transferring Lender’s
participations on the same basis as the transferring Lender) for a purchase
price in cash payable at the time of transfer equal to the outstanding
principal amount of such Lender’s participation in the outstanding Utilisations
and all accrued interest and/or Letter of Credit and/or Bank Guarantee fees,
Break Costs and other amounts payable in relation thereto under the Finance
Documents. The replacement of a Lender pursuant to this Clause shall be subject
to the following conditions:


 


(A)         the Company shall
have no right to replace the Agent or the Security Agent;


 


49

















 


(B)          neither the Agent
nor the Lender shall have any obligation to the Company to find a Replacement
Lender;


 


(C)          in the event of a
replacement of a Lender, such replacement must take place no later than the
Relevant Lender Cancellation Date; and


 


(D)         in no event shall
the Lender replaced under this Clause be required to pay or surrender to such
Replacement Lender any of the fees received by such Lender pursuant to the
Finance Documents.


 


(b)         For the purpose of paragraph (a) above “Change of
Control Event” means:


 


(i)             any of the Owners ceases to own the proportion of
shares in the Company, owned at the date of initial Utilisation of any
Facility; or


 


(ii)            Rockwood Specialties Group GmbH ceases to be, directly
or indirectly, the wholly owned subsidiary of Rockwood Specialties Group Inc.


 


18.4       Voluntary cancellation


 


The Company may, if
it gives the Agent not less than 5 Business Days’ (or such shorter period as
the Majority Lenders may agree) prior notice, cancel the whole or any part
(being a minimum amount of €5,000,000) of an Available Facility. Any
cancellation under this Clause 18.4 shall reduce the Commitments of the Lenders
rateably under that Facility.


 


18.5       Mandatory prepayment - Net Sale Proceeds


 


(a)         The Company shall ensure that an amount equal to all Net Sale Proceeds
is applied in accordance with Clause 18.6 (Application of Net Sale
Proceeds prepayment) below.


 


(b)         Paragraph (a) above does not apply to any Net Sale Proceeds to the
extent that:


 


(i)             such Net Sale
Proceeds are intended to be applied within twelve months of receipt towards the
purchase of other similar assets for use in the Group’s business; or


 


(ii)            such Net Sale
Proceeds do not, when aggregated with any other Net Sale Proceeds received in
any financial year of the Company, exceed €1,000,000 (or its equivalent in
another currency or currencies).


 


18.6       Application of Net Sale Proceeds
prepayment


 


(a)         In this Clause 18.6, “Receipt Date”
means the date on which any Net Sale Proceeds to which paragraph (a) of
Clause 18.5 (Mandatory prepayment — Net Sale Proceeds)
applies (the “Relevant Net Sale Proceeds) have
been received by any member of the Group.


 


(b)         Within five Business Days after a Receipt Date, the Company shall notify
the Agent of the Receipt Date and the amount in the Base Currency (the “Euro Net Sale Proceeds Amount”) equal or equivalent to those
Relevant Net Sale Proceeds.


 


(c)         On receipt of that notice by the Agent, the Facility A Commitment shall
be reduced by an aggregate amount equal to the Euro Net Sale Proceeds Amount.


 


(d)         The Company shall ensure that the Facility A Loans are prepaid (in each
case, on the earlier of 3 Months after the Receipt Date and the expiry of their
Interest Periods current when the Agent 


 


50

















 


receives the relevant notice pursuant to paragraph (b) above) until
Facility A Loans equal to or greater than the Euro Net Sale Proceeds Amount
have been prepaid.


 


(e)         The Facility A Commitment of the Lenders shall be reduced rateably.


 


(f)          Any prepayment under this Clause 18.6 shall satisfy the obligations under Clause 17.1 (Repayment of Facility A Loans) in inverse
chronological order.


 


18.7       Mandatory prepayment - Insurance
Proceeds


 


(a)         The Company shall ensure that an amount equal to all Insurance Proceeds
is applied in accordance with Clause 18.8 (Application of Insurance
Proceeds prepayment) below.


 


(b)         Paragraph (a) above does not apply to any Insurance Proceeds to the
extent that:


 


(i)             such Insurance Proceeds are intended to be applied
within 24 months of receipt to replace, repair or reinstate the asset(s) to
which those Insurance Proceeds relate, provided that a document, setting out in
reasonable detail any planned replacement, repair or reinstatement is provided
to the Agent within 12 Months of receipt of such Insurance Proceeds; and


 


(ii)            such Insurance Proceeds do not exceed €1,000,000 (or
its equivalent in another currency or currencies) in respect of any single
claim or, when aggregated with any other Insurance Proceeds received since the
date of this Agreement, exceed €3,000,000 (or its equivalent in another
currency or currencies).


 


18.8       Application of Insurance Proceeds
prepayment


 


(a)         In this Clause 18.8, “Receipt Date”
means the date on which any Insurance Proceeds to which paragraph (a) of
Clause 11.7 (Mandatory prepayment - Insurance Proceeds)
applies (the “Relevant Insurance Proceeds”) have
been received by any member of the Group.


 


(b)         Within five Business Days after a Receipt Date, the Company shall notify
the Agent of the Receipt Date and the amount in the Base Currency (the “Euro Insurance Proceeds Amount”) equal or equivalent to
those Relevant Insurance Proceeds.


 


(c)         On receipt of that notice by the Agent, the Facility A Commitment shall
be reduced by an aggregate amount equal to the Euro Insurance Proceeds Amount.


 


(d)         The Company shall ensure that the Facility A Loans are prepaid (in each
case, on the earlier of 3 Months after the Receipt Date and the expiry of their
Interest Periods current when the Agent receives the relevant notice pursuant
to paragraph (b) above) until Facility A Loans equal to or greater than
the Euro Insurance Proceeds Amount have been prepaid.


 


(e)         The Facility A Commitment of the Lenders shall be reduced rateably.


 


(f)          Any prepayment under this Clause 11.8 shall satisfy the obligations
under Clause 17.1 (Repayment of Facility A
Loans) in inverse chronological order.


 


18.9       Excluded proceeds


 


Where Net Sale
Proceeds and Insurance Proceeds include amounts which are intended to be used
for a specific purpose within a specified period (as set out in paragraph (b) of
Clause 11.5 (Mandatory prepayment — Net Sale Proceeds)
or paragraph (b) of Clause 11.7 (Mandatory prepayment —
Insurance Proceeds)) the Company shall ensure that those amounts are
used for 


 


51

















 


that
purpose and shall promptly deliver a certificate to the Agent at the time of
such application and at the end of such period confirming the amount (if any)
which has been so applied within the requisite time periods provided for in the
relevant definition.


 


18.10     Restriction on upstream payments


 


(a)         If there is a requirement to make a mandatory prepayment pursuant to
Clause 18.5 (Mandatory prepayment - Net Sale Proceeds)
or Clause 18.7 (Mandatory prepayment - Insurance Proceeds)
and, in order to effect such prepayment, moneys need to be upstreamed or
otherwise transferred from one member of the Group to another member of the
Group and:


 


(i)             the relevant member of the Group who needs to upstream
or transfer moneys to facilitate prepayment, having used its reasonable
endeavours to make such sums available, is not legally able to make payment
(whether by way of dividend, loan or any other means) or some or all of such
sums without any relevant officer or director incurring a risk of personal or
criminal liability or the relevant payment would result in the relevant member
of the Group incurring a material tax liability or other material cost; and


 


(ii)            the relevant Borrower, having used its reasonable
endeavours to fund the prepayment from other resources available to the Group,
is unable to procure the funding of such prepayment,


 


then, until such time
as that the impediment to prepayment no longer applies, such prepayment shall
be made in an amount equal to the aggregate of the amount the relevant Borrower
is legally able to pay and the amount the relevant Borrower is able to procure
from other resources available to the Group.


 


(b)         The Company shall continue to use its reasonable endeavours to procure
that the prepayment which, but for this Clause 18.10, would have been due is
made.  If at any time the restrictions
set out in paragraph (a) above are removed, any relevant proceeds will be
applied in prepayment of the Facilities on the earlier of 3 Months after the
restrictions are removed and the expiry of their Interest Periods current when
the restrictions are removed and otherwise in accordance with Clauses 18.5 (Mandatory prepayment - Net Sale Proceeds) to 18.9 (Excluded proceeds).


 


18.11     Voluntary prepayment of Facility
A Loans


 


(a)         The Borrower to which a Facility A Loan has been made may, if it gives
the Agent not less than 5 Business Days’ (or such shorter period as the
Majority Lenders may agree) prior notice, prepay the whole or any part of any
Facility A Loan (but, if in part, being an amount that reduces the Base
Currency Amount of the Facility A Loan by a minimum amount of €5,000,000 and
integral multiples of €1,000,000 thereafter.)


 


(b)         A Facility A Loan may only be prepaid after the last day of the
Availability Period (or, if earlier, the day on which the applicable Available
Facility is zero).


 


(c)         Any prepayment under this Clause 18.11 shall satisfy the obligations
under Clause 17.1 (Repayment of Facility A
Loans) in inverse chronological order.


 


52

















 


18.12     Voluntary
prepayment of Facility B Utilisations


 


The Borrower to which
a Facility B Utilisation has been made may, if it gives the Agent not less than
5 Business Days’ (or such shorter period as the Majority Lenders may agree)
prior notice, prepay the whole or any part of a Facility B Utilisation, but if
in part, being an amount that:


 


(i)             (in relation to a Facility B Utilisation in US
Dollars) reduces the amount of the Facility B Utilisation by a minimum amount
of US$5,000,000 and integral multiples of US$1,000,000 thereafter; and


 


(ii)            (in relation to a Utilisation in any currency other
than US Dollars), reduces the Base Currency Amount of the Facility B
Utilisation by a minimum amount of €5,000,000 and integral multiples of
€1,000,000 thereafter).


 


18.13     Right of
repayment and cancellation in relation to a single Lender, Ancillary Lender or
Issuing Bank


 


(a)         If:


 


(i)             any sum payable to any Lender or Ancillary Lender or
the Issuing Bank by an Obligor is required to be increased under paragraph (c) of
Clause 23.2 (Tax gross-up); or


 


(ii)            any Lender or Ancillary Lender or the Issuing Bank
claims indemnification from the Company under Clause 23.3 (Tax indemnity) or Clause 24 (Increased costs),


 


the Company may,
whilst the circumstance giving rise to the requirement for gross-up or
indemnification continues, give the Agent notice:


 


(i)             (if such circumstances relate to a Lender) of
cancellation of the Commitment of that Lender and its intention to procure the
repayment of that Lender’s participation in the Utilisations;


 


(ii)            (if such circumstances relate to the Issuing Bank) of
repayment of any outstanding Letter of Credit or Bank Guarantee issued by it
and cancellation of its appointment as an Issuing Bank under this Agreement in
relation to any Letters of Credit or Bank Guarantees to be issued in the
future; or


 


(iii)           (if such circumstances relate to an Ancillary Lender)
of cancellation of that Ancillary Lender’s Ancillary Commitment and its intention
to procure the repayment of the utilisations of any Ancillary Facility granted
by that Ancillary Lender.


 


(b)         On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender or, as the case may be, that Ancillary Lender’s Ancillary
Commitment, shall immediately be reduced to zero.


 


(c)         On the last day of each Interest Period which ends after the Company has
given notice under paragraph (a) above (or, if earlier, the date specified
by the Company in that notice), each Borrower to which a Utilisation or
utilisation of an Ancillary Facility is outstanding shall repay that Lender’s
participation in that Utilisation or utilisation of an Ancillary Facility
granted by that Ancillary Lender.


 


53

















 


18.14     Restrictions


 


(a)         Any notice of cancellation or prepayment given by any Party under this
Clause 18 shall be irrevocable and, unless a contrary indication appears in
this Agreement, shall specify the date or dates upon which the relevant cancellation
or prepayment is to be made and the amount of that cancellation or prepayment.


 


(b)         Any prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without premium
or penalty.


 


(c)         No Borrower may reborrow any part of Facility A which is prepaid.


 


(d)         Unless a contrary indication appears in this Agreement, any part of
Facility B which is prepaid may be reborrowed in accordance with the terms of
this Agreement.


 


(e)         The Borrowers shall not repay or prepay all or any part of the
Utilisations or cancel all or any part of the Commitments except at the times
and in the manner expressly provided for in this Agreement.


 


(f)          No amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.


 


(g)         If the Agent receives a notice under this Clause 18 it shall promptly
forward a copy of that notice to either the Company or the affected Lender, as
appropriate.


 


18.15     Clean Down


 


The Company shall:


 


(a)            ensure that, for a
period of at least five consecutive Business Days (each a “Clean Down
Period”) in each financial year of the Company:


 


(i)           all Facility B
Loans; and


 


(ii)          all amounts
outstanding under any Letter of Credit or Bank Guarantee or similar instrument
issued under an Ancillary Facility to the extent that the Letter of Credit or
Bank Guarantee or other instrument supports actual outstanding Financial
Indebtedness of any member of the Group on a loan or current account,


 


after deducting an amount equal to the
aggregate amount of Cash and Cash Equivalent Investments held by each member of
the Group, are reduced to zero;


 


(b)           notify the Agent
at least three Business Days before the start of any proposed Clean Down
Period; and


 


(c)            ensure that not
less than three Months shall elapse between two Clean Down Periods.


 


54

















 


SECTION 5


 


COSTS
OF UTILISATION


 


19.         Interest


 


19.1       Calculation
of interest


 


The rate of interest
on each Loan for each Interest Period is the percentage rate per annum which is
the aggregate of the applicable:


 


(a)            Margin;


 


(b)           LIBOR or, in relation to any Loan in euro, EURIBOR;
and


 


(c)            Mandatory Cost, if any.


 


19.2       Payment
of interest


 


The Borrower to which
a Loan has been made shall pay accrued interest on that Loan on the last day of
each Interest Period (and, if the Interest Period is longer than six Months, on
the dates falling at six monthly intervals after the first day of the Interest
Period).


 


19.3       Default
interest


 


(a)         If an Obligor fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount from the
due date up to the date of actual payment (both before and after judgment) at a
rate which, subject to paragraph (b) below, is the sum of 1 per cent. and
the rate which would have been payable if the overdue amount had, during the
period of non-payment, constituted a Loan in the currency of the overdue amount
for successive Interest Periods, each of a duration selected by the Agent (acting
reasonably).  Any interest accruing under
this Clause 19.3 shall be immediately payable by the Obligor on demand by the
Agent.


 


(b)         If any overdue amount consists of all or part of a Loan which became due
on a day which was not the last day of an Interest Period relating to that
Loan:


 


(i)             the first Interest Period for that overdue amount
shall have a duration equal to the unexpired portion of the current Interest
Period relating to that Loan; and


 


(ii)            the rate of interest applying to the overdue amount
during that first Interest Period shall be the sum of 1 per cent. and the rate
which would have applied if the overdue amount had not become due.


 


(c)         Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and payable.


 


19.4       Notification of rates of interest


 


The Agent shall
promptly notify the Lenders and the relevant Borrower of the determination of a
rate of interest under this Agreement.


 


19.5       Adjustment of Margin


 


(a)         Subject to this Clause 19.5, the Margin applicable to each Utilisation
shall be the rate per annum specified in the definition of Margin set out in
Clause 1.1 (Definitions)  adjusted by reference to 


 


55

















 


the ratio of Net
Debt to EBITDA as shown in the then most recent Compliance Certificate (and the
financial statements with which it is required by this Agreement to be
delivered) received by the Agent, to equal the rate per annum specified
opposite the relevant range set out in the following table in which the ratio
of Net Debt to EBITDA falls:


 


	
  Ratio

  	
   

  	
  Margin (% p.a.)

  
	
  Equal to or higher than 3.5:1

  	
   

  	
  3.00

  
	
   

  	
   

  	
   

  
	
  Equal to or higher than 3.0:1 but lower than 3.5:1

  	
   

  	
  2.50

  
	
   

  	
   

  	
   

  
	
  Equal to or higher than 2.5:1 but lower than 3.0:1

  	
   

  	
  2.25

  
	
   

  	
   

  	
   

  
	
  Equal to or higher than 2.0:1 but lower than 2.5:1

  	
   

  	
  2.00

  
	
   

  	
   

  	
   

  
	
  Equal to or higher than 1.5:1 but lower than 2.0:1

  	
   

  	
  1.50

  
	
   

  	
   

  	
   

  
	
  Lower than 1.5:1

  	
   

  	
  1.00

  



 


(b)         No adjustment shall be made to the Margin under paragraph (a) above
until receipt by the Agent of the first Compliance Certificate (and the
financial statements with which it is required by this Agreement to be
delivered) for the Relevant Period ending 31 December 2008.


 


(c)         Any adjustment to the Margin under paragraph (a) above shall take
effect on the date (the “Margin Adjustment
Date”) falling on the first day of the Interest Period commencing
after receipt by the Agent of a Compliance Certificate (and the financial statements
with which it is required by this Agreement to be delivered) in accordance with
Clause 30.2 (Compliance Certificate).


 


(d)         If the Margin for a Utilisation is reduced for any period under this
Clause 19.5 but the annual audited financial statements of the Group (and the
Compliance Certificate with which they are required by this Agreement to be
delivered) subsequently received by the Agent do not confirm the basis for that
reduction, that reduction shall be reversed with retrospective effect. In that
event, the Margin for that Utilisation shall be the rate per annum specified
opposite the relevant range set out in the table above of the revised ratio of
Net Debt to EBITDA calculated using the figures in that Compliance Certificate.
The Company shall promptly pay to the Agent any amount necessary to put the
Agent and Lenders in the position they would have been in had the appropriate
rate of the Margin applied during that period.


 


56

















 


(e)         If the annual audited financial statements of the Group (and the
Compliance Certificate with which they are required by this Agreement to be
delivered) subsequently received by the Agent show that the Margin for any
Utilisation should have been reduced for any period, the next payments of
interest falling due on the Utilisations shall be reduced to the extent
necessary to put the Obligors in the position they would have been in if the
Margin had been reduced for that period.


 


(f)          While an Event of Default is continuing, the Margin applicable to each
Utilisation shall be the rate of 3.00
per cent. per annum.


 


20.         Interest
Periods


 


20.1       Selection
of Interest Periods


 


(a)         A Borrower (or the Company on behalf of a Borrower) may select an
Interest Period for a Loan in the Utilisation Request for that Loan or (if the
Loan has already been borrowed) in a Selection Notice.


 


(b)         Each Selection Notice for a Facility A Loan is irrevocable and must be
delivered to the Agent by the Borrower (or the Company on behalf of a Borrower)
to which that Facility A Loan was made not later than the Specified Time.


 


(c)         If a Borrower (or the Company) fails to deliver a Selection Notice to
the Agent in accordance with paragraph (b) above, the relevant Interest
Period will, subject to Clause 20.2 (Changes
to Interest Periods),  be one
Month.


 


(d)         Subject to this Clause 20, a Borrower (or the Company) may select an
Interest Period of 1, 3 or 6 Months or any other period agreed between the
Company and the Agent (acting on the instructions of all the Lenders
participating in the relevant Facility). In addition a Borrower (or the Company
on its behalf) may select an Interest Period of less than one Month (in
relation to Facility A), if necessary to ensure that there are sufficient
Facility A Loans (with an aggregate Base Currency Amount equal to or greater
than the Repayment Instalment) which have an Interest Period ending on a
Facility A Repayment Date for the Borrowers to make the Repayment Instalment
due on that date.


 


(e)         Prior to determining the interest rate for an Interest Period beginning
before the Syndication Date, the Agent may shorten that Interest Period to a
duration of one Month (or such shorter duration as may be desirable) to ensure
that the Interest Period ends on a date on which rights and obligations under
this Agreement are to be novated or assigned to persons becoming Parties as a
result of Syndication.


 


(f)          An Interest Period for a Loan shall not extend beyond the Termination
Date applicable to its Facility.


 


(g)         Each Interest Period for a Facility A Loan shall start on the
Utilisation Date or (if already made) on the last day of its preceding Interest
Period.


 


(h)         A Facility B Loan has one Interest Period only.


 


57
















 


20.2       Changes to Interest Periods


 


(a)         Prior to determining the interest rate for a Facility
A Loan, the Agent may shorten an Interest Period for any Facility A Loan to
ensure there are sufficient Facility A Loans with an Interest Period ending on
a Facility A Repayment Date for the Borrowers to make the Repayment Instalment
due on that Facility A Repayment Date.


 


(b)         If the Agent makes any of the changes to an Interest
Period referred to in this Clause 20.2, it shall promptly notify the Company
and the Lenders.


 


20.3       Non-Business Days


 


If an Interest Period would otherwise end on a
day which is not a Business Day, that Interest Period will instead end on the
next Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).


 


20.4       Consolidation and division of
Facility A Loans


 


(a)         Subject to paragraph (b) below, if two or more Interest Periods:


 


(i)             relate to Facility A Loans in the same currency;


 


(ii)            end on the same date; and


 


(iii)           are made to the same Borrower,


 


those Facility A Loans will, unless that
Borrower (or the Company on its behalf) specifies to the contrary in the
Selection Notice for the next Interest Period, be consolidated into, and
treated as, a single Facility A Loan on the last day of the Interest Period.


 


(b)         Subject to Clause 11.4 (Maximum number of Utilisations) and Clause 12.3 (Currency and amount), if a Borrower (or
the Company on its behalf) requests in a Selection Notice that a Facility A
Loan be divided into two or more Facility A Loans, that Facility A Loan will,
on the last day of its Interest Period, be so divided with Base Currency
Amounts specified in that Selection Notice, being an aggregate Base Currency
Amount equal to the Base Currency Amount of the Facility A Loan immediately
before its division.


 


21.         Changes
to the calculation of interest


 


21.1       Absence of quotations


 


Subject to Clause 21.2 (Market disruption), if LIBOR or, if
applicable, EURIBOR is to be determined by reference to the Reference Banks but
a Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable LIBOR or EURIBOR shall be determined on the basis
of the quotations of the remaining Reference Banks.


 


21.2       Market disruption


 


(a)         If a Market Disruption Event occurs in relation to a
Loan for any Interest Period, then the rate of interest on each Lender’s share
of that Loan for the Interest Period shall be the percentage rate per annum
which is the sum of:


 


(i)             the Margin;


 


(ii)            the rate notified to the Agent by that Lender as soon
as practicable and in any event before interest is due to be paid in respect of
that Interest Period, to be that which 


 


58

















 


expresses as a
percentage rate per annum the cost to that Lender of funding its participation
in that Loan from whatever source it may reasonably select; and


 


(iii)           the Mandatory Cost, if any, applicable to that Lender’s
participation in the Loan.


 


(b)         In this Agreement “Market Disruption Event” means:


 


(i)             at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none or only one of the
Reference Banks supplies a rate to the Agent to determine LIBOR or, if
applicable, EURIBOR for the relevant currency and Interest Period; or


 


(ii)            before close of business in London on the Quotation
Day for the relevant Interest Period, the Agent receives notifications from a
Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that
Loan) that the cost to it of obtaining matching deposits in the Relevant
Interbank Market would be in excess of LIBOR or, if applicable, EURIBOR.


 


21.3       Alternative basis of interest or
funding


 


(a)         If a Market Disruption Event occurs and the Agent or
the Company so requires, the Agent and the Company shall enter into
negotiations (for a period of not more than thirty days) with a view to
agreeing a substitute basis for determining the rate of interest.


 


(b)         Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the Company, be binding on
all Parties.


 


21.4       Break Costs


 


(a)         Each Borrower shall, within three Business Days of
demand by a Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being paid by that
Borrower on a day other than the last day of an Interest Period for that Loan
or Unpaid Sum.


 


(b)         Each Lender shall, as soon as reasonably practicable
after a demand by the Agent, provide a certificate confirming the amount of its
Break Costs for any Interest Period in which they accrue.


 


22.         Fees


 


22.1       Commitment fee


 


(a)         The Company shall pay to the Agent (for the account of
each Lender) a fee in the Base Currency computed at the lower of (i) the
rate of 50 per cent. per annum of the applicable Margin and (ii) 0.75 per
cent. per annum,  on that Lender’s
Available Commitment for the applicable Availability Period.


 


(b)         The accrued commitment fee is payable on the last day
of each successive period of three Months which ends during the relevant
Availability Period, on the last day of the Availability Period and, if
cancelled in full, on the cancelled amount of the relevant Lender’s Commitment
at the time the cancellation is effective.


 


22.2       Arrangement fee


 


The Company shall pay to the Arranger an
arrangement fee in the amount and at the times agreed in a Fee Letter.


 


59

















 


22.3       Agency fee


 


The Company shall pay to the Agent (for its own
account) an agency fee in the amount and at the times agreed in a Fee Letter.


 


22.4       Security Agency fee


 


The Company shall pay to the Security Agent
(for its own account) a security agency fee in the amount and at the times
agreed in a Fee Letter.


 


22.5       Issuing Bank fee


 


The Company shall pay to the Issuing Bank (for
its own account) a fee in the amount and at the times agreed in a Fee Letter.


 


22.6       Ancillary Facility fees


 


The Company or the relevant Borrower shall pay to the relevant Ancillary
Lender the Ancillary Facility fee(s), including the Ancillary Facility commitment
fee(s), in the amount(s) and at the times agreed in the relevant Ancillary
Facility Document.


 


60

















 


SECTION 6


 


ADDITIONAL
PAYMENT OBLIGATIONS


 


23.         Tax gross
up and indemnities


 


23.1       Definitions


 


“Finnish
Qualifying Lender” means a Lender which is:


 


(i)             resident in Finland for Finnish taxation purposes; or


 


(ii)            a Lender not resident in Finland for Finnish taxation
purposes yet entitled to receive all interest payments under the Finance
Documents without deduction or withholding of any Finnish income tax pursuant
to section 9(2) of the Finnish Income Tax Act 1992/1535.


 


“German Borrower”
means a Borrower resident for tax purposes in Germany.


 


“Protected Party”
means a Finance Party which is or will be subject to any liability, or required
to make any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.


 


“Qualifying
Lender” means :


 


(i)             in respect of interest payable by a German Borrower, a
Lender which is beneficially entitled to interest payable to that Lender in
respect of an advance under a Finance Document and is:


 


(A)         lending through a Facility Office in Germany;


 


(B)          a Treaty Lender with respect to the Federal Republic
of Germany; or


 


(C)          otherwise entitled to receive interest payments from
an Obligor without such Obligor being required to make (or as the case may be,
being exempted from) any deduction or withholding for or on account of Tax
imposed by the Federal Republic of Germany in respect of an advance under a
Finance Document;


 


(ii)            a Finnish Qualifying Lender; or


 


(iii)           in respect of any other Borrower, a Lender which is
beneficially entitled to interest payable to that Lender and is:


 


(A)         lending through a Facility Office in the jurisdiction
of incorporation of the relevant Borrower; or


 


(B)          a Treaty Lender with respect to the jurisdiction of
incorporation of the relevant Borrower.


 


“Tax Credit”
means a credit against, relief or remission for, or repayment of any Tax.


 


“Tax Deduction”
means a deduction or withholding for or on account of Tax from a payment under
a Finance Document.


 


“Tax Payment”
means either the increase in a payment made by an Obligor to a Finance Party under
Clause 23.2 (Tax gross-up) or a payment under
Clause 23.3 (Tax indemnity).


 


“Treaty Lender”
means a Lender which:


 


61

















 


(i)             is treated as a resident of a Treaty State for the
purposes of the Treaty; and


 


(ii)            does not carry on a business in the Federal Republic
of Germany or the jurisdiction of incorporation of the relevant Borrower
through a permanent establishment with which that Lender’s participation in the
Loan is effectively connected.


 


“Treaty State”
means a jurisdiction having a double taxation agreement (a “Treaty”) with the Federal Republic of Germany or the
jurisdiction of incorporation of the relevant Borrower which makes provision
for full exemption for tax imposed by the Federal Republic of Germany or the
jurisdiction of incorporation of the relevant Borrower on interest.


 


(b)         Unless a contrary indication appears, in this Clause 23
a reference to “determines” or “determined” means a determination made in the
absolute discretion of the person making the determination.


 


23.2       Tax gross-up


 


(a)         Each Obligor shall make all payments to be made by it
without any Tax Deduction, unless a Tax Deduction is required by law.


 


(b)         The Company shall promptly upon becoming aware that an
Obligor must make a Tax Deduction (or that there is any change in the rate or
the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender
shall notify the Agent on becoming so aware in respect of a payment payable to
that Lender. If the Agent receives such notification from a Lender it shall
notify the Company and that Obligor.


 


(c)         If a Tax Deduction is required by law to be made by an
Obligor, the amount of the payment due from that Obligor shall be increased to
an amount which (after making any Tax Deduction) leaves an amount equal to the
payment which would have been due if no Tax Deduction had been required.


 


(d)         An Obligor is not required to make an increased
payment to a Lender under paragraph (c) above for a Tax Deduction in
respect of tax imposed by the Federal Republic of Germany or the jurisdiction
of incorporation of the relevant Obligor from a payment of interest on a Loan,
if on the date on which the payment falls due:


 


(i)             the payment could have been made to the relevant
Lender without a Tax Deduction if it was a Qualifying Lender, but on that date
that Lender is not or has ceased to be a Qualifying Lender other than as a
result of any change after the date it became a Lender under this Agreement in
(or in the interpretation, administration, or application of) any law or
Treaty, or any published practice or concession of any relevant taxing
authority; or;


 


(ii)            the relevant Lender is a Treaty Lender and the Obligor
making the payment is able to demonstrate that the payment could have been made
to the Lender without the Tax Deduction had that Lender complied with its
obligations under paragraph (g) below.


 


(e)         If an Obligor is required to make a Tax Deduction,
that Obligor shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and in the minimum
amount required by law.


 


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(f)          Within thirty days of making either a Tax Deduction or
any payment required in connection with that Tax Deduction, the Obligor making
that Tax Deduction shall deliver to the Agent for the Finance Party entitled to
the payment evidence reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate payment paid to the relevant
taxing authority.


 


(g)         A Treaty Lender and each Obligor which makes a payment
to which that Treaty Lender is entitled shall co-operate in completing any
procedural formalities necessary for that Obligor to obtain authorisation to
make that payment without a Tax Deduction.


 


23.3       Tax indemnity


 


(a)         The Company shall (within three Business Days of
demand by the Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or has been
(directly or indirectly) suffered for or on account of Tax by that Protected
Party in respect of a Finance Document.


 


(b)         Paragraph (a) above shall not apply:


 


(i)             with respect to any Tax assessed on a Finance Party:


 


(A)         under the law of the jurisdiction in which that
Finance Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as resident for tax
purposes;


 


(B)          under the law of the jurisdiction in which that
Finance Party’s Facility Office is located in respect of amounts received or
receivable in that jurisdiction; or


 


(C)          under the laws of Germany pursuant to section 49
paragraph 1 no. 5 lit. c) aa) German Income Tax Code (Einkommensteuergesetz)
due to the fact that a Facility is secured (directly or indirectly) by real
estate located in Germany (inländische Grundstücke)
or domestic rights treated as real property under German Civil Law (inländische Rechte die den Vorschriften des Bürgerlichen Rechts über
Grundstücke unterliegen),


 


if that Tax is imposed on or calculated by
reference to the net income received or receivable (but not any sum deemed to
be received or receivable) by that Finance Party; or


 


(ii)            to the extent a loss, liability or cost:


 


(A)         is compensated for by an increased payment under Clause
23.2 (Tax gross-up); or


 


(B)          would have been compensated for by an increased
payment under Clause 23.2 (Tax gross-up)
but was not so compensated solely because one of the exclusions in paragraph (d) of
Clause 23.2 (Tax gross-up)
applied.


 


(c)         A Protected Party making, or intending to make, a
claim under paragraph (a) above shall promptly notify the Agent of the
event which will give, or has given, rise to the claim, following which the
Agent shall notify the Company.


 


(d)         A Protected Party shall, on receiving a payment from
an Obligor under this Clause 23.3, notify the Agent.


 


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23.4       Tax Credit


 


If an Obligor makes a
Tax Payment and the relevant Finance Party determines that:


 


(a)            a Tax Credit is attributable either to an increased
payment of which that Tax Payment forms part, or to that Tax Payment; and


 


(b)           that Finance Party has (directly or on an affiliated
group basis) obtained, utilised and retained that Tax Credit,


 


the Finance Party shall pay an amount to the
Obligor which that Finance Party determines will leave it (after that payment)
in the same after-Tax position as it would have been in had the Tax Payment not
been required to be made by the Obligor.


 


23.5       Stamp taxes


 


The Company shall pay and, within three
Business Days of demand, indemnify each Finance Party against any cost, loss or
liability that Finance Party incurs in relation to all stamp duty, registration
and other similar Taxes payable in respect of any Finance Document.


 


23.6       Value added tax


 


(a)         All amounts set out, or expressed to be payable under
a Finance Document by any Party to a Finance Party which (in whole or in part)
constitute the consideration for VAT purposes shall be deemed to be exclusive
of any VAT which is chargeable on such supply, and accordingly, subject to
paragraph (c) below, if VAT is chargeable on any supply made by the
Finance Party to any Party under a Finance Document, that Party shall pay to
the Finance Party (in addition to and at the same time as paying the
consideration) an amount equal to the amount of the VAT (and such Finance Party
shall promptly provide an appropriate VAT invoice to such Party).


 


(b)         If VAT is chargeable on any supply made by any Finance
Party (the “Supplier”) to any
other Finance Party (the “Recipient”)
under a Finance Document, and any Party (the “Relevant
Party”) is required by the terms of any Finance Document to pay an
amount equal to the consideration for such supply to the Supplier (rather than
being required to reimburse the Recipient in respect of that consideration),
such Party shall also pay to the Supplier (in addition to and at the same time
as paying such amount) an amount equal to the amount of such VAT. The Recipient
will promptly pay to the Relevant Party an amount equal to any credit or
repayment from the relevant tax authority which it reasonably determines
relates to the VAT chargeable on that supply.


 


(c)         Where a Finance Document requires any Party to
reimburse a Finance Party for any costs or expenses, that Party shall also at
the same time pay and indemnify the Finance Party against all VAT incurred by
the Finance Party in respect of the costs or expenses to the extent that the
Finance Party reasonably determines that neither it nor any other member of any
group of which it is a member for VAT purposes is entitled to credit or
repayment from the relevant tax authority in respect of the VAT.


 


23.7       German Earnings Stripping Rules


 


Should a Borrower, which claims interest
deductions in Germany for German Tax purposes with regard to interest payments
under this Agreement require the assistance by the Finance Parties on the basis
of sec. 4f of the German Income Tax Act (Einkommensteuergesetz)
and sec. 8a of the German Corporate Income Tax Act (Körperschaftsteuergesetz)
in the form of the German 


 


64

















 


Business Tax Reform Act 2008 (Unternehmensteuerreformgesetz 2008, published in the Federal
Gazette, BGBI. I 2007, 1912 et seq.), with regard to the application of the
equity escape clause, the Finance Parties shall, upon receipt of a request of
the relevant Borrower (containing a detailed proposal for the requested
assistance) enter into good faith negotiations as to what extent it is
reasonably practical for the Finance Parties to assist the Borrower in this
respect. For the avoidance of doubt, no Finance Party shall be obliged to
release any Security, change this Agreement or disclose information which is
confidential under applicable statutory or contractual banking secrecy rules.


 


24.         Increased
costs


 


24.1       Increased costs


 


(a)         Subject to Clause 24.3 (Exceptions) the Company shall, within three Business Days of
a demand by the Agent, pay for the account of a Finance Party the amount of any
Increased Costs incurred by that Finance Party or any of its Affiliates as a
result of (i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or regulation or (ii) compliance
with any law or regulation made after the date of this Agreement.


 


(b)         In this Agreement “Increased
Costs” means:


 


(i)             a reduction in the rate of return from the Facility or
on a Finance Party’s (or its Affiliate’s) overall capital;


 


(ii)            an additional or increased cost; or


 


(iii)           a reduction of any amount due and payable under any
Finance Document,


 


which is incurred or suffered by a Finance
Party or any of its Affiliates to the extent that it is attributable to that
Finance Party having entered into its Commitment or funding or performing its
obligations under any Finance Document.


 


24.2       Increased cost claims


 


(a)         A Finance Party intending to make a claim pursuant to
Clause 24.1 (Increased costs),
shall notify the Agent of the event giving rise to the claim, following which
the Agent shall promptly notify the Company.


 


(b)         Each Finance Party shall, as soon as practicable after
a demand by the Agent, provide a certificate confirming the amount of its
Increased Costs.


 


24.3       Exceptions


 


(a)         Clause 24.1 (Increased
costs) does not apply to the extent any Increased Cost is:


 


(i)             attributable to a Tax Deduction required by law to be
made by an Obligor;


 


(ii)            compensated for by Clause 23.3 (Tax indemnity) (or would have been
compensated for under Clause 23.3 (Tax
indemnity) but was not so compensated solely because any of the exclusions
in paragraph (b) of Clause 23.3 (Tax
indemnity) applied); or


 


(iii)           compensated for by the payment of the Mandatory Cost;
or


 


(iv)          attributable to the wilful breach by the relevant
Finance Party or its Affiliates of any law or regulation.


 


65

















 


(b)         In this Clause 24.3, a reference to a “Tax Deduction”
has the same meaning given to the term in Clause 23.1 (Definitions).


 


25.         Other
indemnities


 


25.1       Currency indemnity


 


(a)         If any sum due from an Obligor under the Finance
Documents (a “Sum”), or any order,
judgment or award given or made in relation to a Sum, has to be converted from
the currency (the “First Currency”)
in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:


 


(i)             making or filing a claim or proof against that
Obligor;


 


(ii)            obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,


 


that Obligor shall as an independent
obligation, within three Business Days of demand, indemnify each Finance Party
to whom that Sum is due against any cost, loss or liability arising out of or
as a result of the conversion including any discrepancy between (A) the
rate of exchange used to convert that Sum from the First Currency into the
Second Currency and (B) the rate or rates of exchange available to that
person at the time of its receipt of that Sum.


 


(b)         Each Obligor waives any right it may have in any
jurisdiction to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be payable.


 


25.2       Other indemnities


 


The Company shall (or
shall procure that an Obligor will), within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability incurred by
that Finance Party as a result of:


 


(a)            the occurrence of any Event of Default;


 


(b)           a failure by an Obligor to pay any amount due under a
Finance Document on its due date, including without limitation, any cost, loss
or liability arising as a result of Clause 39 (Sharing
among the Finance Parties);


 


(c)            funding, or making arrangements to fund, its
participation in a Utilisation requested by a Borrower in a Utilisation Request
but not made by reason of the operation of any one or more of the provisions of
this Agreement (other than by reason of default or negligence by that Finance
Party alone); or


 


(d)           a Utilisation (or part of a Utilisation) not being
prepaid in accordance with a notice of prepayment given by a Borrower or the
Company.


 


25.3       Indemnity to the Agent and the
Security Agent


 


The Company shall
promptly indemnify the Agent and the Security Agent against any cost, loss or
liability incurred by the Agent or the Security Agent (acting reasonably) as a
result of:


 


(a)            investigating any event which it reasonably believes
is a Default; or


 


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(b)           acting or relying on any notice, request or
instruction which it reasonably believes to be genuine, correct and
appropriately authorised.


 


26.         Mitigation by the Lenders


 


26.1       Mitigation


 


(a)         Each Finance Party shall, in consultation with the
Company, take all reasonable steps to mitigate any circumstances which arise
and which would result in any amount becoming payable under or pursuant to, or
cancelled pursuant to, any of Clause 18.1 (Illegality
in relation to a Lender or the Issuing Bank),
Clause 11.2 (Illegality in relation to an Ancillary
Lender), Clause 23 (Tax gross-up
and indemnities) or Clause 24 (Increased
costs) including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or Facility
Office.


 


(b)         Paragraph (a) above does not in any way limit the
obligations of any Obligor under the Finance Documents.


 


26.2       Limitation of liability


 


(a)         The Company shall indemnify each Finance Party for all
costs and expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 26.1 (Mitigation).


 


(b)         A Finance Party is not obliged to take any steps under
Clause 26.1 (Mitigation) if, in
the opinion of that Finance Party (acting reasonably), to do so might be
prejudicial to it.


 


27.         Costs and
expenses


 


27.1       Transaction expenses


 


The Company shall
promptly on demand pay the Agent, the Security Agent and the Arranger the
amount of all costs and expenses (including legal fees) reasonably incurred by
any of them in connection with the negotiation, preparation, printing,
execution and syndication of:


 


(a)            this Agreement and any other documents referred to in
this Agreement, subject to agreed caps in respect of out of pocket expenses and
legal fees; and


 


(b)           any other Finance Documents executed after the date of
this Agreement.


 


27.2       Amendment costs


 


If (a) an Obligor requests an amendment,
waiver or consent or (b) an amendment is required pursuant to Clause 40.9
(Change of currency), the Company
shall, within three Business Days of demand, reimburse the Agent and the
Security Agent for the amount of all costs and expenses (including legal fees)
reasonably incurred by the Agent or the Security Agent in responding to,
evaluating, negotiating or complying with that request or requirement.


 


27.3       Enforcement costs


 


The Company shall, within three Business Days
of demand, pay to each Finance Party the amount of all costs and expenses
(including legal fees) incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under, any Finance Document.


 


67
















 


27.4       Security
Agent expenses


 


The Company shall promptly on demand pay the
Security Agent the amount of all costs and expenses (including legal fees)
reasonably incurred by it in connection with the administration or release of
any Security created pursuant to any Security Document.


 


27.5       Undertaking
to pay


 


(a)         The Company undertakes to pay each Finance Party within three Business
Days of demand an amount equal to any liability, damages, loss, cost or expense
(including legal fees, costs and expenses) incurred by or awarded against that
Finance Party or any of its Affiliates or any of its (or its Affiliates’)
directors, officers, employees or agents (each a “Relevant Party”) arising out of, in connection with or based
on any actual or potential action, claim, suit, investigation or proceeding
arising out of, in connection with or based on:


 


(i)             any Finance Document;


 


(ii)            the arranging, underwriting or syndication of the Facilities;


 


(iii)           the use of proceeds of any Loan; or


 


(iv)          the use of any Letter of Credit or Bank Guarantee,


 


except to the extent such liability, damages, loss, cost or expense
incurred or awarded results from any breach by a Finance Party of a Finance
Document which is finally judicially determined to have resulted directly from
the gross negligence or wilful misconduct of that Relevant Party.


 


(b)         The Company undertakes to pay each Finance Party, within three Business
Days of demand, an amount equal to any cost or expense (including legal fees,
costs and expenses) incurred by any Relevant Party in connection with
investigating, preparing, pursuing or defending any action, claim, suit,
investigation or proceeding arising out of, in connection with or based on any
of the above, whether or not pending or threatened and whether or not any Relevant
Party is a party.


 


(c)         No Finance Party shall have any duty or obligation, whether as fiduciary
for any Relevant Party or otherwise, to recover any payment made or required to
be made under paragraph (a).


 


(d)         The Company agrees that no Relevant Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company
or any of its Affiliates for or in connection with anything referred to in
paragraph (a) above except for any such liability, damages, loss, cost or
expense incurred by the Company that results directly from any breach by that
Relevant Party of any Finance Document which is in each case finally judicially
determined to have resulted directly from the gross negligence or wilful
misconduct of that Relevant Party.


 


(e)         Notwithstanding paragraph (d) above, no Relevant Party shall be
responsible or have any liability to the Company or any of its Affiliates or
anyone else for consequential losses or damages.


 


68

















 


SECTION 7


 


guarantee


 


28.         Guarantee
and indemnity


 


28.1       Guarantee
and indemnity


 


Each Guarantor irrevocably and unconditionally
jointly and severally:


 


(a)            guarantees
to each Finance Party punctual performance by each Borrower of all that
Borrower’s obligations under the Finance Documents;


 


(b)           undertakes
with each Finance Party that whenever a Borrower does not pay any amount when
due under or in connection with any Finance Document, that Guarantor shall
immediately on demand pay that amount as if it was the principal obligor; and


 


(c)            agrees
with each Finance Party that if, for any reason, any amount claimed by a
Finance Party under this Clause 28 is not recoverable on the basis of a
guarantee, it will be liable to indemnify that Finance Party against any cost,
loss or liability it incurs as a result of a Borrower not paying any amount
when due under or in connection with any Finance Document. The amount payable
by a Guarantor under this indemnity will not exceed the amount it would have
had to pay under this Clause 28 if the amount claimed had been recoverable on
the basis of a guarantee.


 


28.2       Continuing
guarantee


 


This guarantee is a continuing guarantee and
will extend to the ultimate balance of sums payable by any Obligor under the
Finance Documents, regardless of any intermediate payment or discharge in whole
or in part.


 


28.3       Reinstatement


 


If as a result of insolvency or any similar
event:


 


(a)            any
payment by an Obligor is avoided, reduced or must be restored; or


 


(b)           any
discharge or arrangement (whether in respect of the obligations of any Obligor
or any security for those obligations or otherwise) is made in whole or in part
on the basis of any payment, security or other thing which is avoided, reduced
or must be restored,


 


(i)           the
liability of each Obligor shall continue or be reinstated as if the payment,
discharge or arrangement had not occurred; and


 


(ii)          each
Finance Party shall be entitled to recover the value or amount of that payment
or security from each Obligor, as if the payment, discharge or arrangement had
not occurred.


 


28.4       Waiver of
defences


 


The obligations of each Guarantor under this
Clause 28 will not be affected by an act, omission, matter or thing which, but
for this Clause, would reduce, release or prejudice any of its obligations
under this Clause 28 (without limitation and whether or not known to it or any
Finance Party) including:


 


(a)            any
time, waiver or consent granted to, or composition with, any Obligor or other
person;


 


69

















 


(b)           the
release of any other Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the Group;


 


(c)            the
taking, variation, compromise, exchange, renewal or release of, or refusal or
neglect to perfect, take up or enforce, any rights against, or security over
assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;


 


(d)           any
incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of an Obligor or any other person;


 


(e)            any
amendment, novation, supplement, extension, restatement (however fundamental
and whether or not more onerous) or replacement of any Finance Document or any
other document or security, including any change in the purpose of, any
extension of or any increase in any facility or the addition of any new
facility under any Finance Document or other document or security;


 


(f)            any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security; or


 


(g)           any
insolvency or similar proceedings.


 


28.5       Immediate
recourse


 


Each Guarantor waives any right it may have of
first requiring any Finance Party (or any trustee or agent on its behalf) to
proceed against or enforce any other rights or security or claim payment from
any person before claiming from that Guarantor under this Clause 28.  This waiver applies irrespective of any law
or any provision of a Finance Document to the contrary.


 


28.6       Appropriations


 


Until all amounts which may be or become
payable by the Obligors under or in connection with the Finance Documents have
been irrevocably paid in full, each Finance Party (or any trustee or agent on
its behalf) may:


 


(a)            refrain
from applying or enforcing any other moneys, security or rights held or
received by that Finance Party (or any trustee or agent on its behalf) in respect
of those amounts, or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and


 


(b)           hold
in an interest-bearing suspense account any moneys received from any Guarantor
or on account of any Guarantor’s liability under this Clause 28.


 


28.7       Deferral
of Guarantors’ rights


 


Until all amounts which may be or become
payable by the Obligors under or in connection with the Finance Documents have
been irrevocably paid in full and unless the Agent or, as the case may be, the
Security Agent otherwise directs, no Guarantor will exercise any rights which
it may have by reason of performance by it of its obligations under the Finance
Documents:


 


(a)            to
be indemnified by an Obligor;


 


70

















 


(b)           to
claim any contribution from any other guarantor of any Obligor’s obligations
under the Finance Documents; and/or


 


(c)            to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Finance Parties under the Finance Documents or
of any other guarantee or security taken pursuant to, or in connection with,
the Finance Documents by any Finance Party.


 


If a Guarantor receives any benefit, payment or
distribution in relation to such rights it shall hold that benefit, payment or
distribution to the extent necessary to enable all amounts which may be or
become payable to the Finance Parties by the Obligors under or in connection
with the Finance Documents to be repaid in full on trust for the Finance
Parties and shall promptly pay or transfer the same to the Agent or as the
Agent may direct for application in accordance with Clause 40 (Payment mechanics) of this Agreement.


 


28.8       Additional
security


 


This guarantee is in addition to and is not in
any way prejudiced by any other guarantee or security now or subsequently held
by any Finance Party.


 


28.9       Release
of Guarantors’ right of contribution


 


If any Guarantor (a “Retiring Guarantor”)
ceases to be a Guarantor in accordance with the terms of the Finance Documents
for the purpose of any sale or other disposal of that Retiring Guarantor then
on the date such Retiring Guarantor ceases to be a Guarantor:


 


(a)            that
Retiring Guarantor is released by each other Guarantor from any liability
(whether past, present or future and whether actual or contingent) to make a
contribution to any other Guarantor arising by reason of the performance by any
other Guarantor of its obligations under the Finance Documents; and


 


(b)           each
other Guarantor waives any rights it may have by reason of the performance of
its obligations under the Finance Documents 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 where such rights or
security are granted by or in relation to the assets of the Retiring Guarantor.


 


28.10     Preservation
of stated share capital of a German Guarantor


 


(a)         To
the extent that the guarantee created under this Clause 28 (the “Guarantee”) is granted by a Guarantor
incorporated in Germany as a limited liability company (GmbH) (each a “German Guarantor”) and the Guarantee of the German Guarantor
guarantees amounts


 


(i)             which
are owed by direct or indirect shareholders of the German Guarantor or
Subsidiaries of such shareholders (with the exception of Subsidiaries which are
also Subsidiaries of the German Guarantor); and provided that


 


(ii)            such
amounts do not correspond to funds that have been on-lent to, or otherwise been
passed on to, the relevant German Guarantor or any of its Subsidiaries and have
not been repaid,


 


71

















 


the Guarantee of the
German Guarantor shall be subject to certain limitations as set out in
paragraph (b). In relation to any other amounts guaranteed, the Guarantee of
the German Guarantor remains unlimited.


 


(b)         To
the extent that the demand under the Guarantee against a German Guarantor is
made in respect of amounts in relation to which the conditions pursuant to
paragraph (a) are fulfilled, the relevant German Guarantor’s liability
shall be limited as follows:


 


(i)             Subject
to sub-paragraphs (iii) to (viii) below, the Agent shall not be
entitled to enforce the Guarantee to the extent that such enforcement has the
effect of


 


(A)         reducing
the German Guarantor’s net assets (Nettovermögen)
(the “Net Assets”) to an amount
less than its stated share capital (Stammkapital),
or


 


(B)          (if
its Net Assets are already lower than its stated share capital) causing such
amount to be further reduced,


 


and thereby affects its assets which are
required for the obligatory preservation of its stated share capital according
to §§ 30, 31 German GmbH-Act (GmbH-Gesetz)
(the “GmbH-Act”).


 


(ii)            The
value of the Net Assets shall be determined in accordance with GAAP
consistently applied by the German Guarantor in preparing its unconsolidated
balance sheets (Jahresabschluss
according to § 42 GmbH-Act, §§ 242, 264 HGB) in the previous years,
save that


 


(A)         the
amount of any increase of the stated share capital (Stammkapital) of the German Guarantor registered after the
date of this Agreement without the prior written consent of the Agent shall be
deducted from the relevant stated share capital;


 


(B)          loans
provided to the relevant German Guarantor by a member of the Group shall be
disregarded if such loans are subordinated, or are considered subordinated
pursuant to § 32a GmbH-Act; and


 


(C)          loans
and other liabilities incurred in violation of the provisions of this Agreement
shall be disregarded to the extent such violation is caused by wilful
misconduct or gross negligence of the managing directors of the relevant
Guarantor.


 


(iii)           The
limitations set out in sub-paragraph (i) above shall only apply if
and to the extent that the managing director(s) (Geschäftsführer) on behalf of the respective German
Guarantor have confirmed in writing to the Agent within 15 calendar days following
the Agent’s demand under the Guarantee, to what extent the demanded payment
fulfils the conditions pursuant to paragraph (a) and would cause its Net
Assets to fall below its stated share capital (Stammkapital)
or, if the Net Assets are already less than the stated share capital (Stammkapital), would cause such amount to
be further reduced (the “Management
Determination”).


 


(iv)          If
the Agent disagrees with the Management Determination, the Agent shall
nevertheless be entitled to enforce the Guarantee up to such amount, which is
undisputed between 


 


72

















 


itself
and the relevant German Guarantor in accordance with the provisions of
paragraph (iii) above. In relation to the amount which is disputed,
the Agent and such German Guarantor shall instruct a firm of auditors of
international standing and reputation to determine within 45 calendar days
(or such longer period as has been agreed between the Company and the Agent)
from the date the Agent has contested the Management Determination the value of
available Net Assets (the “Auditor’s
Determination”). If the Agent and the German Guarantor do not agree
on the appointment of a joint auditor within 5 Business Days from the date the
Agent has disputed the Management Determination, the Agent shall be entitled to
appoint auditors of international standing and reputation. The amount
determined as available in the Auditor’s Determination shall be (except for
manifest error) binding for all Parties. The costs of the Auditor’s
Determination shall be borne by the Company and shall be taken into account in
the calculation of Net Assets.


 


(v)           If,
and to the extent that, the Guarantee has been enforced without regard to the
limitation set forth in sub-paragraph (i) because (A) the
Management Determination was not delivered within the relevant time frame or (B) the
amount of the available Net Assets pursuant to the Auditor’s Determination is
lower than the amount stated in the Management Determination, the Finance
Parties shall upon written demand of the relevant German Guarantor to the Agent
(on behalf of the Finance Parties) repay any amount (if and to the extent
already paid to the Finance Parties) in the case of (A) above, which is
necessary to maintain such German Guarantor’s stated share capital (Stammkapital), and in the case of (B) above
up to and including the amount calculated in the Auditor’s Determination
calculated as of the date the demand under the Guarantee was made and in
accordance with sub-paragraphs (i) and (ii) above, provided such
demand for repayment is made to the Agent within 6 months (Ausschlussfrist) from the date the
Guarantee has been enforced.


 


If pursuant to the Auditor’s Determination the
amount of the available Net Assets is higher than set out in the Management
Determination the relevant German Guarantor shall pay such amount to the
Finance Parties within 5 Business Days after receipt of the Auditor’s
Determination.


 


(vi)          If
the German Guarantor intends to demonstrate that the enforcement of the Guarantee
has led to one of the effects referred to in sub-paragraph (i) above,
then the German Guarantor shall realise at market value any and all of its
assets that are shown in its balance sheet with a book value (Buchwert) which are (in the reasonable opinion
of the Agent) significantly lower than their market value and to the extent
that such assets are not necessary for the relevant German Guarantor’s business
(nicht betriebsnotwendig), to the
extent necessary to satisfy the amounts demanded under this paragraph Guarantee.


 


(vii)         The
limitation set out in sub-paragraph (i) does not affect the right of
the Finance Parties to claim again any outstanding amount at a later point in
time if and to the extent that paragraph (i) would allow this at that
later point.


 


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(viii)        If the German
Guarantor demonstrates that, at the time of enforcement, it is obliged to file
for the commencement of insolvency proceedings for reason of over-indebtedness
(Überschuldung), then for the
determination of its Net Assets the lower of the amount of net assets shown by
a regular balance sheet (Handelsbilanz)
and by a balance sheet showing an over-indebtedness (Überschuldungsstatus)
shall be relevant. In the assessment of the Guarantor’s assets for the balance
sheet showing an over-indebtedness, however, the continuation of the enterprise
shall not be taken as a basis if according to the circumstances such
continuation is not deemed highly likely (negative
Fortführungsprognose). Sub-paragraphs (iii) to (vii) above
shall apply mutatis mutandis in relation to the German Guarantor invoking its
over-indebtedness (Überschuldung).


 


(c)         This
Clause 28.10 (Preservation of stated share
capital of a German Guarantor) shall apply mutatis mutandis if the Guarantee is
granted by a Guarantor incorporated as a limited liability partnership (GmbH & Co. KG) in relation to the
limited liability company as general partner (Komplementär)
of such Guarantor.


 


28.11     Limitation
applicable to Finnish Guarantors


 


No obligations of any Guarantor incorporated in
Finland under this Clause 28 shall extend to guarantee the obligations of any
Borrower to the extent, and only to the extent, it would constitute (i) unlawful
distribution of assets within the meaning of Chapter 13, Section 1 of the
Finnish Companies Act (osakeyhtiölaki 624/2006,
as amended or re-enacted from time to time), or (ii) unlawful financial
assistance within the meaning of Chapter 13, Section 10 of the Finnish
Companies Act.


 


74

















 


SECTION 8


 


REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT


 


29.         Representations


 


Each Obligor makes the representations and
warranties set out in this Clause 29 to each Finance Party on the date of this
Agreement.


 


29.1       Status


 


(a)         It
is a corporation or limited liability company, duly incorporated and validly
existing under the law of its jurisdiction of incorporation.


 


(b)         It
and each of its Subsidiaries has the power to own its assets and carry on its
business as it is being conducted.


 


29.2       Binding
obligations


 


The
obligations expressed to be assumed by it in each Finance Document are legal,
valid, binding and enforceable, subject to the Legal Reservations and the
Perfection Requirements.


 


29.3       Non-conflict
with other obligations


 


The
entry into and performance by it of, and the transactions contemplated by, the
Finance Documents do not and will not conflict with:


 


(a)            any law or regulation applicable to it;


 


(b)           its or any of its Subsidiaries’ constitutional
documents; or


 


(c)            any agreement or instrument binding upon it or any of
its Subsidiaries or any of its or any of its Subsidiaries’ assets to an extent
which has or is reasonably likely to have a Material Adverse Effect,


 


nor (except as provided in any Security Document)
result in the existence of, or oblige it to create, any Security over any of
its assets which are expressed to be the subject of any Security Document.


 


29.4       Power and
authority


 


It has the power to enter into, perform and
deliver, and has taken all necessary action to authorise its entry into,
performance and delivery of, the Finance Documents to which it is a party and
the transactions contemplated by those Finance Documents.


 


29.5       Validity
and admissibility in evidence


 


All
Authorisations required:


 


(a)            to enable it lawfully to enter into, exercise its
rights and comply with its obligations in the Finance Documents to which it is
a party;


 


(b)           to make the Finance Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation; and


 


(c)            subject to the Perfection Requirements, to enable it
to create the Security to be created by it pursuant to any Security Document
and to ensure that such Security has the priority and ranking it is expressed
to have,


 


75

















 


have been obtained or effected and are in full
force and effect or will be obtained or effected and will be in full force and
effect no later than the date of first utilisation of any Facility.


 


29.6       Governing
law and enforcement


 


(a)         Subject
to the Legal Reservations, the choice of English law as the governing law of
the Finance Documents will be recognised and enforced in its jurisdiction of
incorporation.


 


(b)         Subject
to the Legal Reservations, any judgment obtained in England in relation to a
Finance Document will be recognised and enforced in its jurisdiction of
incorporation.


 


29.7       Deduction
of Tax


 


At the date of this Agreement, it is not
required to make any deduction for or on account of Tax from any payment it may
make under any Finance Document.


 


29.8       No filing
or stamp taxes


 


Under the law of its jurisdiction of
incorporation it is not necessary that the Finance Documents be filed, recorded
or enrolled with any court or other authority in that jurisdiction or that any
stamp, registration or similar tax be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance Documents.


 


29.9       No
default


 


(a)         No
Event of Default is continuing or might reasonably be expected to result from
the making of any Utilisation.


 


(b)         No
other event or circumstance is outstanding which constitutes a default under
any other agreement or instrument which is binding on it or any of its
Subsidiaries or to which its (or any of its Subsidiaries’) assets are subject which
has or is reasonably likely to have a Material Adverse Effect.


 


29.10     Information
Memorandum


 


(a)         Any
factual information provided by or on behalf of  any member of the Group for the purposes of the
Information Memorandum was true and accurate in all material respects as at the
date it was provided or as at the date (if any) at which it is stated.


 


(b)         The
financial projections contained in the Information Memorandum have been
prepared on the basis of recent historical information and on the basis of reasonable
assumptions.


 


(c)         Nothing
has occurred or been omitted from the Information Memorandum and no information
has been given or withheld that results in the information contained in the
Information Memorandum being untrue or misleading in any material respect.


 


29.11     Financial
statements


 


(a)         Its
Original Financial Statements were prepared in accordance with GAAP
consistently applied.


 


(b)         Its
Original Financial Statements fairly represent its financial condition and
operations (consolidated in the case of the Company) as at the end of and for
the relevant financial year.


 


(c)         There
has been no material adverse change in its business or financial condition (or
the business or consolidated financial condition of the Group, in the case of
the Company) since the date to which its Original Financial Statements were
drawn up.


 


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29.12     Pari
passu ranking


 


Without limiting Clause 22.17 (Security) below, its payment obligations under the Finance
Documents rank at least pari passu with the claims of all its other unsecured
and unsubordinated creditors, except for obligations mandatorily preferred by
law applying to companies generally.


 


29.13     No
proceedings pending or threatened


 


(a)         No
litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency which, if adversely determined might reasonably be
expected to have a Material Adverse Effect have (to the best of its knowledge
and belief) been started or threatened against it or any of its Subsidiaries.


 


(b)         Paragraph
(a) shall not apply to any litigation, arbitration or administrative
proceedings which are vexatious or frivolous.


 


29.14     Environmental
laws and licences


 


It
and each of its Subsidiaries has:


 


(a)            complied with all Environmental Laws to which it may
be subject;


 


(b)           obtained all Environmental Licences required in
connection with its business; and


 


(c)            complied with the terms of those Environmental
Licences,


 


in each case where failure to do so has, or is
reasonably likely to have a Material Adverse Effect.


 


29.15     Environmental
releases


 


No:


 


(a)            property currently or previously owned, leased,
occupied or controlled by it or any of its Subsidiaries (including any offsite
waste management or disposal location utilised by it or any of its
Subsidiaries) is contaminated with any Hazardous Substance; and


 


(b)           discharge, release, leaching, migration or escape of
any Hazardous Substance into the Environment has occurred or is occurring on,
under or from that property,


 


in each case in circumstances where this has or
is reasonably likely to have a Material Adverse Effect.


 


29.16     Solvency


 


No:


 


(a)            corporate action, legal proceeding or other procedure
or step described in Clause 25.7 (Insolvency
proceedings); or


 


(b)           creditors’ process described in Clause 26.8 (Creditors’ process),


 


has been started in respect of it or any of its
Subsidiaries.


 


29.17     Security


 


(a)         Subject to any applicable Perfection Requirements, each Security
Document creates (or, once entered into, will create) in favour of the Security
Agent for the benefit of the Finance Parties, the Security which it is
expressed to create fully perfected and with the ranking and priority it is
expressed to have.


 


77
















 


(b)         The constitutional documents of any member of the Group and the JV
Documents do not restrict or inhibit in any manner any transfer of any shares
of any member of the Group which are expressed to be subject to any Security
under any Security Document except for the articles of association of
Sachtleben Chemie from which restrictions will be removed in accordance with
the terms of the pledge agreement relating to the shares of Sachtleben Chemie.


 


29.18     Legal and beneficial ownership


 


(a)         It and each of its Subsidiaries is the absolute legal and beneficial
owner of all the assets over which it purports to create Security pursuant to
any Security Document, free from any Security other than Permitted Security.


 


(b)         Paragraph (a) shall not apply to any assets which are subject to
the German Transfer Agreement and are not owned by Sachtleben Chemie.


 


29.19     Assets


 


It and each of its Subsidiaries has good and marketable title to, or
valid leases or licences of, or is otherwise entitled to use (in each case, on
arm’s length terms), all material assets necessary for the conduct of its
business as it is being, and is proposed to be, conducted.


 


29.20     JV
Documents


 


(a)         The JV Documents:


 


(i)             contain all the terms of the arrangements between the Owners relating to
the Ti02 Joint Venture (and/or any of their respective Affiliates) and any
Holding Company of the Company and/or any member of the Group (and/or any of
their respective Affiliates);


 


(ii)            are or, on the date of the first Utilisation Request, will be in full force
and effect; and


 


(iii)           have not been amended from the form in which they were delivered or
waived (in whole or in part) and no consent has been given thereunder, save for
any which do not materially and adversely affect the interests of the Lenders
or have been approved in writing by the Agent.


 


(b)         Neither it nor any of its Subsidiaries is in, or aware of any, material
breach of or material default under any JV Document.


 


29.21     Pensions


 


(a)         No member of the Group has any material liability in respect of any
pension scheme and there are no circumstances which would give rise to such a
liability other than as disclosed in the Information Memorandum or otherwise to
the Agent prior to the date of this Agreement.


 


(b)         Each member of the Group is in compliance in all material respects with
all applicable material laws and material contracts relating to and the
governing provisions of the pension schemes maintained by or for the benefit of
any member of the Group and/or any of its employees.


 


29.22     Insurances


 


(a)         The insurances required by Clause 24.7 (Insurance)
are in full force and effect as required by this Agreement.


 


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(b)         No event or circumstance has occurred, and there has been no failure to
disclose a fact, which would entitle any insurer to reduce or avoid its
liability under any such insurance where such event, circumstance or failure
would reasonably be expected to have a Material Adverse Effect.


 


29.23     Repetition


 


The
Repeating Representations (and, in the case of paragraph (b) below, the
representations set out in Clauses 29.5 (Validity
and admissibility in evidence) and 29.8 (No filing or stamp taxes)) are deemed to be made by each
Obligor by reference to the facts and circumstances then existing on:


 


(a)            the date of each Utilisation Request and the first day
of each Interest Period; and


 


(b)           in the case of an Additional Obligor, the day on which
the company becomes (or it is proposed that the company becomes) an Additional
Obligor.


 


The representations and warranties set out in
Clause 22.10 (Information Memorandum) are
deemed to be made by each Obligor on the date on which the Information
Memorandum is approved by the Company and on the Syndication Date subject to,
in each case, any disclosures made by the Company prior thereto.


 


30.         Information
undertakings


 


The undertakings in this Clause 30 remain in
force from the date of this Agreement for so long as any amount is outstanding
under the Finance Documents or any Commitment is in force.


 


30.1       Financial
statements


 


The Company shall supply to the Agent in
sufficient copies for all the Lenders:


 


(a)            as
soon as the same become available, but in any event within 180 days after the
end of each of its financial years and beginning with the financial year ending
31 December 2008:


 


(i)           its
audited consolidated financial statements for that financial year; and


 


(ii)          the
unaudited financial statements of each Obligor for that financial year; and


 


(b)           as
soon as the same become available, but in any event within 45 days after the
end of each Financial Quarter and beginning with the Financial Quarter ending
on 30 September 2008:


 


(i)           its
consolidated financial statements for that Financial Quarter; and


 


(ii)          the
financial statements of each Obligor for that Financial Quarter.


 


30.2       Compliance
Certificate


 


(a)         The
Company shall supply to the Agent, with each set of financial statements
delivered pursuant to paragraph (a)(i) or (b)(i) of Clause 30.1 (Financial statements), a Compliance
Certificate setting out (in reasonable detail) computations as to compliance
with Clause 31 (Financial covenants)
as at the date as at which those financial statements were drawn up.


 


(b)         If
required to be delivered with the financial statements delivered pursuant to
paragraph (a)(i) of Clause 23.1 (Financial statements),
the Compliance Certificate shall also set out the Material 


 


79

















 


Subsidiaries
and (in reasonable detail) computations for the determination of which members
of the Group are Material Subsidiaries.


 


(c)         Each
Compliance Certificate shall be signed by two directors of the Company and, if
required to be delivered with the financial statements delivered pursuant to
paragraph (a)(i) of Clause 30.1 (Financial
statements), shall be reported on by the Company’s auditors in the
form reasonably required by the Agent.


 


30.3       Requirements
as to financial statements


 


(a)         Each
set of financial statements delivered by the Company pursuant to Clause 30.1 (Financial statements) shall be certified
by a director of the relevant company as fairly representing its (or, as the
case may be, its consolidated) financial condition and operations as at the end
of and for the period in relation to which those financial statements were
drawn up.


 


(b)         The Company shall procure that each set of financial
statements delivered pursuant to Clause 30.1 (Financial
statements) is prepared using the Applicable Accounting Principles, unless, in relation to any set of financial statements, it notifies the
Agent that there has been a change in GAAP or the relevant accounting practices
or reference periods and its auditors (or, if appropriate, the auditors of the
Obligor) deliver to the Agent:


 


(i)             a description of any change necessary for the relevant financial statements
to reflect the Applicable Accounting Principles; and


 


(ii)            sufficient information, in form and substance as may be reasonably
required by the Agent, to enable the Lenders to determine whether
Clause 24 (Financial covenants)
has been complied with, to determine any other relevant matter set out in this
Agreement and/or to make an accurate comparison between the financial position
indicated in those financial statements and that Obligor’s Original Financial
Statements.


 


Any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to reflect
the Applicable Accounting Principles.


 


(c)         If the Company notifies the Agent of a change in accordance with
paragraph (b) above, the Company and the Agent shall enter into
negotiations in good faith with a view to agreeing any amendments to this
Agreement which are necessary as a result of the change.


 


30.4       Information:
miscellaneous


 


The
Company shall supply to the Agent (in sufficient copies for all the Lenders, if
the Agent so requests):


 


(a)            all documents dispatched by the Company to its
creditors generally at the same time as they are dispatched;


 


(b)           promptly upon becoming aware of them, the details of
any litigation, arbitration or administrative proceedings which are current,
threatened or pending against any member of the Group, and which might, if
adversely determined, reasonably be expected to have a Material Adverse Effect
(other than any litigation, arbitration or administrative proceedings which are
vexatious or frivolous); and


 


80

















 


(c)            promptly, such further information regarding the
financial condition, business and operations of any member of the Group as any
Finance Party (through the Agent) may reasonably request.


 


30.5       Notification
of default


 


(a)         Each
Obligor shall notify the Agent of any Default (and the steps, if any, being
taken to remedy it) promptly upon becoming aware of its occurrence (unless that
Obligor is aware that a notification has already been provided by another
Obligor).


 


(b)         Promptly
upon a request by the Agent, the Company shall supply to the Agent a
certificate signed by two of its directors or senior officers on its behalf
certifying that no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy it).


 


30.6       “Know
your customer” checks


 


(a)         If:


 


(i)             the
introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this Agreement;


 


(ii)            any
change in the status of an Obligor after the date of this Agreement; or


 


(iii)           a
proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to such
assignment or transfer,


 


obliges the Agent or any Lender (or, in the
case of paragraph (iii) above, any prospective new Lender) to comply with “know
your customer” or similar identification procedures in circumstances where the
necessary information is not already available to it, each Obligor shall
promptly upon the request of the Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Agent (for itself or on behalf of any Lender) or any Lender (for itself or,
in the case of the event described in paragraph (iii) above, on behalf of
any prospective new Lender) in order for the Agent, such Lender or, in the case
of the event described in paragraph (iii) above, any prospective new
Lender to carry out and be satisfied it has complied with all necessary “know
your customer” or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance Documents.


 


(b)         Each
Lender shall promptly upon the request of the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Agent (for itself) in order for the Agent to carry out and be satisfied it
has complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations pursuant to the transactions
contemplated in the Finance Documents.


 


(c)         The
Company shall, by not less than 10 Business Days’ prior written notice to the
Agent, notify the Agent (which shall promptly notify the Lenders) of its
intention to request that one of its Subsidiaries becomes an Additional Obligor
pursuant to Clause 35 (Changes to the
Obligors).


 


(d)         Following
the giving of any notice pursuant to paragraph (c) above, if the accession
of such Additional Obligor obliges the Agent or any Lender to comply with “know
your customer” or similar identification procedures in circumstances where the
necessary information is not already 


 


81

















 


available
to it, the Company shall promptly upon the request of the Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself or on behalf of any Lender) or
any Lender (for itself or on behalf of any prospective new Lender) in order for
the Agent or such Lender or any prospective new Lender to carry out and be
satisfied it has complied with all necessary “know your customer” or other
similar checks under all applicable laws and regulations pursuant to the
accession of such Subsidiary to this Agreement as an Additional Obligor.


 


31.         Financial
covenants


 


31.1       Financial
condition


 


The
Company shall ensure that:


 


(a)            the ratio of Net Debt on each Quarter Date in each
period set out in the table below to EBITDA for the Relevant Period ending on
that Quarter Date will not exceed the ratio set out in the relevant column in
the table below opposite that period;


 


(b)           the ratio of EBITDA to Net Interest Costs for each
Relevant Period ending on a Quarter Date in each period set out in the table
below will not be less than the ratio set out in the relevant column in the
table below opposite that period; and


 


(c)            the ratio of Cash Generated for Financing to Debt
Service for each Relevant Period ending on a Quarter Date in each period set
out in the table below will not be less than the ratio set out in the relevant
column in the table below opposite that period.


 


	
  Period

  	
   

  	
  Net Debt: EBITDA

  	
   

  	
  EBITDA: Net Interest

  Costs

  	
   

  	
  Cash Generated for

  Financing: Debt

  Service

  
	
  30 September 2008 to and including 31
  December 2008

  	
   

  	
  4.00:1.00

  	
   

  	
   

  	
   

  	
   

  
	
  31 December 2008

  	
   

  	
   

  	
   

  	
  2.75:1.00

  	
   

  	
  1.00:1.00

  
	
  1 January 2009 to and including 31
  December 2009

  	
   

  	
  4.00:1.00

  	
   

  	
  3.00:1.00

  	
   

  	
  1.00:1.00

  
	
  1 January 2010 to and including 31
  December 2010

  	
   

  	
  3.50:1.00

  	
   

  	
  3.50:1.00

  	
   

  	
  1.10:1.00

  
	
  Thereafter

  	
   

  	
  3.00:1.00

  	
   

  	
  4.00:1.00

  	
   

  	
  1.10:1.00

  



 


31.2       Definitions


 


In this Clause 24.2:


 


“Capital Expenditure”
means any expenditure or obligation (other than expenditure or obligations in
respect of Permitted Acquisitions and Permitted Joint Ventures) in respect of
expenditure which, in accordance with the Accounting Principles, is treated as
capital 


 


82

















 


expenditure (and including the capital element
of any expenditure or obligation incurred in connection with a Finance Lease).


 


“Cash Generated for
Financing” means, in respect of any Relevant Period (the “Current Relevant Period”), EBITDA for that Relevant Period
after:


 


(a)            adding
the amount of any decrease (and deducting the amount of any increase) in
Working Capital for that Relevant Period;


 


(b)           adding
the amount of any cash receipts (and deducting the amount of any cash payments)
during that Relevant Period in respect of any Exceptional Items not already
taken account of in calculating EBITDA for any Relevant Period (other than, in
the case of cash receipts, Net Sale Proceeds or Insurance Proceeds applied in
prepayment of the Facilities);


 


(c)            adding
the amount of any cash receipts during that Relevant Period in respect of any
Tax rebates or credits and deducting the amount actually paid or due and
payable in respect of Taxes during that Relevant Period by any member of the
Group;


 


(d)           adding
(to the extent not already taken into account in determining EBITDA) the amount
of any dividends or other profit distributions received in cash by any member
of the Group during that Relevant Period from any entity which is itself not a
member of the Group and deducting (to the extent not already deducted in
determining EBITDA) the amount of any dividends paid in cash during the
Relevant Period to minority shareholders in members of the Group;


 


(e)            adding
the amount of any increase in provisions, other non-cash debits and other
non-cash charges (which are not Current Assets or Current Liabilities) and
deducting the amount of any non-cash credits (which are not Current Assets or
Current Liabilities) in each case to the extent taken into account in
establishing EBITDA;


 


(f)            deducting
the amount of any Capital Expenditure actually made (or due to be made) during
that Relevant Period by any member of the Group and the aggregate of any cash
consideration paid for, or the cash cost of, any  Permitted Acquisitions and Permitted Joint
Ventures except (in the case) to the extent funded from;


 


(i)           Cash
Generated for Financing in the Relevant Period ending immediately prior to the
first day of the Current Relevant Period (the “Previous
Relevant Period”) less Debt Service for the Previous Relevant
Period;


 


(ii)          Net
Sale Proceeds or Insurance Proceeds permitted to be retained for this purpose;
or


 


(iii)         new
equity or Financial Indebtedness subordinated to the Facilities on terms
acceptable to the Majority Lenders (acting reasonably) and received from a
person which is not a member of the Group; and


 


(g)           deducting
the amount of any cash costs of Pension Items during that Relevant Period to
the extent not taken into account in establishing EBITDA,


 


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and so that no amount shall be added (or
deducted) more than once and there shall be excluded the effect of all cash
movements associated with the JV Costs up to an amount not exceeding
€8,000,000.


 


“Current Assets”
means the aggregate (on a consolidated basis) of all inventory, work in
progress, trade and other receivables of each member of the Group including
prepayments in relation to operating items and sundry debtors (but excluding
Cash and Cash Equivalent Investments) maturing within twelve months from the
date of computation but excluding
amounts in respect of:


 


(a)            receivables
in relation to Tax;


 


(b)           Exceptional
Items and other non-operating items;


 


(c)            insurance
claims; and


 


(d)           any
interest owing to any member of the Group.


 


“Current Liabilities”
means the aggregate (on a consolidated basis) of all liabilities (including
trade creditors, accruals and provisions) of each member of the Group falling
due within twelve months from the date of computation but excluding
amounts in respect of:


 


(a)            liabilities
for Debt, other Financial Indebtedness or pensions and Interest Expenses;


 


(b)           liabilities
for Tax;


 


(c)            Exceptional
Items and other non-operating items; and


 


(d)           insurance
claims.


 


“Debt” means, at
any time, the aggregate outstanding principal, capital or nominal amount (and
any fixed or minimum premium payable on prepayment (to the extent the relevant
member of the Group has taken action that will result in such premium being
required to be paid) or redemption) of Financial Indebtedness of members of the
Group but excluding:


 


(a)            any
indebtedness referred to in paragraphs (f), (g) or (i) of the
definition of Financial Indebtedness (provided that, in relation to paragraphs (f) and
(i) of such definition, only to the extent such indebtedness is not
classified as borrowings under IFRS);


 


(b)           any
guarantee in respect of Financial Indebtedness to the extent such guarantee is
not classified as a borrowing under IFRS; and


 


(c)            any
Financial Indebtedness subordinated to the Facilities under the Subordination
Agreement or otherwise on terms acceptable to the Majority Lenders (acting
reasonably) including, without limitation, any subordinated shareholder loans.


 


“Debt Service”
means, in respect of any Relevant Period, the aggregate of:


 


(a)            Interest
Expenses for that Relevant Period;


 


(b)           the
aggregate of all scheduled repayments of Debt falling due during that Relevant
Period  but excluding:


 


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(i)           any
amounts falling due under any overdraft or revolving facility (including,
without limitation, Facility B and any Ancillary Facility) and which were
available for simultaneous redrawing according to the terms of that facility;


 


(ii)          any
such obligations owed to any member of the Group; and


 


(iii)         any
prepayment of Debt existing on the date of this Agreement which is required to
be repaid under the terms of this Agreement; and


 


(c)            the
amount of the capital element of any payments in respect of that Relevant
Period payable under any Finance Lease entered into by any member of the Group,


 


and so that no amount shall be included more
than once.


 


“EBITDA” means,
in respect of any Relevant Period, the consolidated operating profit of the
Group before taxation (excluding the results from discontinued operations):


 


(a)            before
deducting any Net Interest Expenses
and other finance charges in respect of Financial Indebtedness;


 


(b)           not
including any accrued interest owing
to any member of the Group;


 


(c)            before
taking into account any
Exceptional Items (and after adding the amount of any profit which would have
been generated by Kemira Pigments in that Relevant Period but for the strikes
that occurred in that Relevant Period, in each case as referred to in the KPMG
Supplementary Report);


 


(d)           before
deducting JV Costs up to an amount
not exceeding €8,000,000 (for the avoidance of doubt, JV Costs exceeding
€8,000,000 shall be deducted to the extent otherwise required to be deducted
pursuant to the terms of this Agreement);


 


(e)            after
deducting the amount of any profit
(or adding back the amount of any loss) of any member of the Group which is
attributable to minority interests;


 


(f)            plus
or minus the Group’s share of the profits or losses (after finance costs and
tax) of Non-Group Entities (after deducting
the amount of any profit of any Non-Group Entity to the extent that the amount
of the profit included in the financial statements of the Group exceeds the
amount actually received in cash by members of the Group through distributions
by the Non-Group Entity);


 


(g)           before
taking into account any
unrealised gains or losses on any derivative instrument;


 


(h)           before
taking into account any
gain or loss on the disposal or revaluation of assets (other than in the
ordinary course of trading);


 


(i)             before
taking into account any Pension Items;


 


(j)             after
adding back any amount
attributable to the amortisation, depreciation or impairment of assets of
members of the Group (and taking no account of the reversal of any previous
impairment charge made in that Relevant Period); and


 


(k)            after
adding back, to the extent
deducted, any non-recurring fees, expenses or charges paid in relation to (A) any
restructuring, provided that it has a future identifiable benefit 


 


85

















 


for
the operation of the Group (as approved by the Agent in consultation with the
Lenders) and the amount added back does not exceed €10,000,000 in any financial
year of the Company or €25,000,000 from the date of this Agreement; and (B) any
Permitted Acquisition or Permitted Joint Venture,


 


in each case, to the extent added, deducted or
taken into account, as the case may be, for the purposes of determining
operating profits of the Group before taxation.


 


“Exceptional Items”
means any exceptional, one off, non-recurring or extraordinary items (including
without limitation any lay-off and other restructuring costs and any additional
pension costs relating thereto, in each case incurred by Kemira Pigments and as
referred to in the KPMG Supplementary Report).


 


“Financial Year”
means the annual accounting period of the Group.


 


“Interest Expenses”
means, for any Relevant Period, the aggregate amount of the accrued interest,
commission, fees, discounts, prepayment fees, premiums or charges and other
finance payments in respect of Debt (including, for the avoidance of doubt, any
Financial Indebtedness subordinated to the Facilities) whether paid or payable
(unless capitalised or included pursuant to paragraph (d) below) by any
member of the Group (calculated on a consolidated basis) in respect of that
Relevant Period:


 


(a)            including any upfront fees or costs which are not capitalised;


 


(b)           including
the interest (but not the
capital) element of payments in respect of Finance Leases;


 


(c)            including any commission, fees, discounts and other finance
payments payable by (and deducting any such amounts payable to) any member of
the Group under any interest rate hedging arrangement;


 


(d)           including the amortisation of any capitalised finance payments;
and


 


(e)            taking
no account of any unrealised gains or losses on any derivative instruments,


 


and so that no amount shall be added (or
deducted) more than once.


 


“Net Debt”
means, at any time, the aggregate amount of all obligations of members of the
Group for or in respect of Debt at that time but:


 


(a)            excluding
any such obligations to any
other member of the Group;


 


(b)           including,
in the case of Finance Leases only, their capitalised value; and


 


(c)            deducting the aggregate amount of Cash and Cash Equivalent
Investments held by any member of the Group at that time,


 


and so that no amount shall be included or
excluded more than once.


 


“Net Interest Expenses”
means, for any Relevant Period, the Interest Expenses for that Relevant Period
after deducting any interest or any other
financial income payable in that Relevant Period to any member of the Group on
any Cash or Cash Equivalent Investment.


 


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“Non-Group Entity”
means any investment or entity (which is not itself a member of the Group
(including associates and Joint Ventures)) in which any member of the Group has
an ownership interest.


 


“Pension Items”
means any income or charge attributable to a post-employment benefit scheme
other than the current service costs and any past service costs and
curtailments and settlements attributable to the scheme.


 


“Working Capital”
means, on any date, Current Assets less Current Liabilities.


 


31.3       Financial
covenant calculations


 


(a)            Capital
Expenditure, Cash Generated for Financing, Current Assets, Current Liabilities,
Debt, Debt Service, EBITDA, Exceptional Items, Interest Expenses, Net
Interest Expenses, Net Debt and Working Capital shall be calculated and
interpreted on a consolidated basis in accordance with the Applicable
Accounting Principles, unless expressly provided to the contrary, and shall be
expressed in euro.


 


(b)           Capital
Expenditure, Cash Generated for Financing, EBITDA, Interest Expenses, Net
Interest Expenses, Net Debt and Working Capital shall be determined (except as
needed to reflect the terms of this Clause 31) from the financial statements of
the Group and Compliance Certificates delivered under Clause 30.1 (Financial statements), and Clause 30.2 (Compliance
Certificate).


 


(c)            For
the purpose of this Clause 31, an amount outstanding or repayable on a
particular day in a currency other than euro shall on that day be taken into
account in its euro equivalent at the rate of exchange that would have been
used had an audited consolidated balance sheet of the Group been prepared as at
that day in accordance with the Applicable Accounting Principles.


 


(d)           For
the purpose of this Clause 31, no item shall be included or excluded more than
once in any calculation.


 


(e)            To
the extent that any period prior to the date of first Utilisation of any
Facility is included in any Relevant Period in Clause 31.1 (Financial condition):


 


(i)           Net
Interest Expenses for the period from the beginning of the Relevant Period
until the date of first Utilisation of any Facility shall be calculated on a
pro forma basis on the basis of the actual Net Interest Expenses from the date
of first Utilisation of any Facility until the end of the Relevant Period; and


 


(ii)          EBITDA
for the period from the beginning of the Relevant Period until the date of
first Utilisation of any Facility shall be the actual earnings before interest,
tax, depreciation and amortisation calculated using the same principles set out
in this Clause 31 for the calculation of EBITDA.


 


(f)            The
Company shall provide the Agent with the financial information and pro forma
computations necessary to calculate these items.


 


(g)           If
any Permitted Acquisition occurs during a Relevant Period in relation to a
business or company and the underlying business or company is not subsequently
disposed of


 


87
















 


during
that Relevant Period (an “Acquired Entity”),
the Acquired Entity’s earnings before interest, tax, depreciation and
amortisation and cash generated for financing (calculated using the principles
set out in this Clause 31 for the calculation of EBITDA and Cash Generated for
Financing, respectively) in respect of the part of the Relevant Period before
its acquisition shall be included in determining EBITDA and Cash Generated for
Financing for that Relevant Period.


 


(h)           If
any Permitted Disposal occurs during a Relevant Period in relation to a
business or company (a “Sold Entity”),
the Sold Entity’s earnings before interest, tax, depreciation and amortisation
and cash generated for financing (calculated using the principles set out in
this Clause 31 for the calculation of EBITDA and Cash Generated for Financing,
respectively) in respect of the part of the Relevant Period before its disposal
shall be excluded in determining EBITDA and Cash Generated for Financing for
that Relevant Period.


 


(i)             Net
Interest Expenses and Debt Service shall be adjusted to reflect the assumption
of debt relating to any Acquired Entity or repayment of debt relating to any
Sold Entity.


 


32.         General
undertakings


 


The undertakings in this Clause 32 remain in
force from the date of this Agreement for so long as any amount is outstanding
under the Finance Documents or any Commitment is in force.


 


32.1       Authorisations


 


(a)         Each
Obligor shall promptly:


 


(i)             obtain,
comply with and do all that is necessary to maintain in full force and effect;
and


 


(ii)            on
request by the Agent, supply certified copies to the Agent of,


 


any Authorisation required under any law or
regulation of its jurisdiction of incorporation to enable it to perform its
obligations under the Finance Documents and to ensure, subject to the Legal
Reservations, the legality, validity, enforceability or admissibility in
evidence in its jurisdiction of incorporation of any Finance Document.


 


32.2       Compliance
with laws


 


Each Obligor shall comply in all respects with
all laws to which it is subject, if failure so to comply would be reasonably
expected to have a Material Adverse Effect.


 


32.3       Negative
pledge


 


(a)         No
Obligor shall (and the Company shall ensure that no other member of the Group
will) create or permit to subsist any Security or Quasi Security over any of
its assets.


 


(b)         Paragraph
(a) does not apply to any Security or Quasi Security which is Permitted
Security.


 


32.4       Disposals


 


(a)         No
Obligor shall (and the Company shall ensure that no other member of the Group
will) enter into a single transaction or a series of transactions (whether
related or not and whether voluntary or involuntary) to sell, lease, transfer
or otherwise dispose of any asset.


 


(b)         Paragraph
(a) above does not apply to any sale, lease, transfer or other disposal
which is a Permitted Disposal or a Permitted Transaction.


 


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32.5       Merger


 


No Obligor shall (and the Company shall ensure
that no other member of the Group will) enter into any amalgamation, demerger,
merger or corporate reconstruction without the prior written consent of the
Majority Lenders other than a Permitted Transaction.


 


32.6       Change of
business


 


The Company shall procure that no substantial
change is made to the general nature of the business of the Group taken as a
whole from that carried on at the date of this Agreement.


 


32.7       Insurance


 


Each Obligor shall (and the Company shall
ensure that each other member of the Group will) maintain insurances on and in
relation to its business and assets with reputable underwriters or insurance
companies against those risks, and to the extent, usually insured against by
prudent companies located in the same or a similar location and carrying on a
similar business.


 


32.8       Environmental
undertakings


 


Each
Obligor shall (and the Company shall ensure that each other member of the Group
will):


 


(a)            comply with all Environmental Laws to which it is
subject;


 


(b)           obtain all Environmental Licences required in
connection with its business; and


 


(c)            comply with the terms of all those Environmental
Licences,


 


in each case where failure to do has or is
reasonably likely to have a Material Adverse Effect.


 


32.9       Environmental
claims


 


Each Obligor shall (and the Company shall
ensure that each other member of the Group will) promptly notify the Agent of
any claim, notice or other communication received by it in respect of any
actual or alleged breach of or liability under Environmental Law which, if
substantiated, has or is reasonably likely to have a Material Adverse Effect.


 


32.10     Assets


 


Each Obligor shall (and the Company shall ensure that each other member
of the Group will) maintain in good working order and condition (ordinary wear
and tear excepted) all its assets necessary for the conduct of its business as
conducted from time to time.


 


32.11     Pari passu


 


Each Obligor shall ensure that its obligations under the Finance
Documents rank at all times at least pari
passu in right of priority and payment with the claims of all its
other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.


 


32.12     Loans or credit


 


(a)         No Obligor shall (and the Company shall ensure that no other member of
the Group will) be a creditor in respect of any Financial Indebtedness.


 


(b)         Paragraph (a) above does not apply to a Permitted Loan or a
Permitted Transaction.


 


32.13     Guarantees


 


(a)         No Obligor shall (and the Company shall ensure that no other member of
the Group will) issue or allow to remain outstanding any guarantee in respect
of any liability or obligation of any person.


 


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(b)         Paragraph (a) above does not apply to a Permitted Guarantee.


 


32.14     Financial
Indebtedness


 


(a)         No Obligor shall (and the Company shall ensure that no other member of
the Group will) incur (or agree to incur) or allow to remain outstanding any
Financial Indebtedness.


 


(b)         Paragraph (a) above does not apply to Financial Indebtedness that
is Permitted Financial Indebtedness or a Permitted Transaction.


 


32.15     Restricted
payments


 


The Company shall not:


 


(i)             declare, pay or make any dividend or other payment or distribution of
any kind on or in respect of any of its shares; or


 


(ii)            reduce, return, purchase, repay, cancel or redeem any of its shares,


 


provided that the Company may take such action at any time when the
ratio of Net Debt on the most recent Quarter Date to EBITDA for the Relevant
Period ending on that Quarter Date is less than or equal to 2.50:1.00 and that
immediately after any such action is taken, such ratio will be less than or
equal to 2.50:1.00.


 


32.16     Acquisitions


 


(a)         No Obligor shall (and the Company shall ensure that no other member of
the Group will):


 


(i)             acquire any share in, or any security issued by, any person, or any interest
therein (or agree to do any of the foregoing); or


 


(ii)            acquire any business or going concern, or the whole or substantially the
whole of the assets or business of any person, or any assets that constitute a
division or operating unit of the business of any person (or agree to do any of
the foregoing).


 


(b)         Paragraph (a) above does not apply to any acquisition or investment
which is a Permitted Acquisition or a Permitted Transaction.


 


32.17     Arm’s
length terms


 


(a)         No Obligor shall (and the Company shall ensure that no other member of
the Group will) enter into any contract or arrangement with or for the benefit
of any other person which is not a member of the Group (including any disposal
to that person) other than in the ordinary course of business and on arm’s
length terms or better.


 


(b)         Paragraph (a) above does not apply to:


 


(i)             any JV Costs up to an aggregate amount of €8,000,000; and


 


(ii)            a Permitted Transaction.


 


(c)         The Company shall ensure that no member of the Group which is not an
Obligor shall enter into any contract or arrangement regarding a sale, lease,
transfer or other disposal or a loan, credit or other arrangement having a
similar effect with or for the benefit of any Obligor on terms less
advantageous to that Obligor than arm’s length terms.


 


90

















 


32.18     Hedging


 


(a)         The Company shall ensure that the hedging required by the Hedging Letter
is effected within 90 days after the date of first utilisation of any Facility
(and is maintained in effect) in accordance with the terms of the Hedging
Letter.


 


(b)         No Obligor shall (and the Company shall ensure that no other member of
the Group will) enter (or agree to enter) into any derivative transaction.


 


(c)         Paragraph (b) above does not apply to any derivative transaction
which is a Permitted Hedging Transaction.


 


32.19     Pensions


 


The Company shall ensure that all pension schemes maintained or operated
by, or for the benefit of, any member of the Group and/or any of its employees:


 


(i)             are maintained and operated in all material respects in accordance with
all applicable laws and contracts and their governing provisions; and


 


(ii)            are funded substantially in accordance with the governing provisions of
the scheme with any funding shortfall advised by actuaries of recognised
standing being rectified in accordance with those governing provisions.


 


32.20     Taxes


 


(a)         Each Obligor shall (and the Company shall ensure that each other member
of the Group will) pay all material Taxes required to be paid by it within the
time period allowed for payment without incurring any material penalties for
non-payment.


 


(b)         Paragraph (a) above does not apply to any Taxes:


 


(i)             being contested by the relevant member of the Group in good faith and in
accordance with the relevant procedures;


 


(ii)            for which adequate reserves are being maintained in accordance with, and
to the extent required by, GAAP; and


 


(iii)           where payment can be lawfully withheld and will not result in the
imposition of any penalty nor in any Security ranking in priority to the claims
of any Finance Party under any Finance Document or to any Security created
under any Security Document.


 


(c)         No member of the Group may change its residence for Tax purposes.


 


32.21     Joint
Ventures


 


(a)         No Obligor shall (and the Company shall ensure that no member of the
Group will):


 


(i)             invest in or acquire (or agree to invest in or acquire) any share in, or
any security issued by, any Joint Venture or any interest therein; or


 


(ii)            transfer any assets, or lend, to or give a guarantee, Security or Quasi
Security for, or otherwise underwrite, the obligations of, or incur any other
liability (whether actual or contingent and whether present or future) in
respect of, a Joint Venture (or agree to do any of the foregoing).


 


91

















 


(b)         Paragraph (a) above does not apply to any acquisition of or
investment in, or transfer or loan to, or guarantee, Security or Quasi Security
for the obligations of, or any other liability in respect of, the Ti02 Joint
Venture or a Permitted Joint Venture.


 


32.22     Guarantees
and Security


 


(a)         The Company shall:


 


(i)             within 30 days of a member of the Group becoming a Material Subsidiary,
ensure that the relevant member of the Group becomes an Additional Guarantor in
accordance with Clause 35 (Changes to
the Obligors).


 


(b)         The Company need only perform its obligations under paragraph (a) above
if it is not unlawful for the relevant person to become a Guarantor and that
person becoming a Guarantor would not result in personal liability for that
person’s directors or other management. Each Obligor must use, and must procure
that the relevant person uses, all reasonable endeavours lawfully available to
avoid any such unlawfulness or personal liability. This includes agreeing to a
limit on the amount guaranteed. The Agent may (but shall not be obliged to)
agree to such a limit if, in its opinion, to do so would avoid the relevant
unlawfulness or personal liability.


 


(c)         Each Obligor shall (and the Company shall ensure that each other member
of the Group will), at its own expense, promptly take all such action as the
Agent or the Security Agent may require:


 


(i)             for the purpose of perfecting or protecting any of the Finance Parties’
rights under, and preserving the Security intended to be created or evidenced
by, any of the Finance Documents; and


 


(ii)            for the purpose of facilitating the realisation of any of that Security,


 


including the execution of any transfer, conveyance, assignment or
assurance of any asset and the giving of any notice, order or direction and the
making of any registration which the Agent or the Security Agent may reasonably
require.


 


(d)         The Company shall ensure that at all times:


 


(i)             the aggregate of the unconsolidated net assets (excluding any intragroup
loans) of the Guarantors (without double counting and excluding any interests
in any Subsidiaries which are Guarantors) exceeds 80 per cent. of the
consolidated net assets of the Group; and


 


(ii)            the aggregate of the unconsolidated revenues or EBITDA of the Guarantors
(without double counting and excluding any dividends or other distributions
from Subsidiaries which are Guarantors) exceeds 80 per cent. of the
consolidated revenues or EBITDA of the Group,


 


in each case calculated by reference to the then most recent annual and
quarterly unaudited unconsolidated financial statements of each Guarantor and
the then most recent annual and quarterly audited consolidated financial
statements of the Group.


 


32.23     Issue of shares


 


(a)         No Obligor (other than the Company) shall (and the Company shall ensure
that no other member of the Group will):


 


92

















 


(i)             issue any share to any person; or


 


(ii)            grant to any person any conditional or unconditional option, warrant or
other right to call for the issue or allotment of, subscribe for, purchase or
otherwise acquire any share of any member of the Group (including any right of
pre-emption, conversion or exchange), or alter any right attaching to any share
capital of any member of the Group.


 


(b)         Paragraph (a) above does not apply to:


 


(i)             any issue of shares by a member of the Group to its immediate holding
company; and


 


(ii)            any issue of shares by a member of the Group which is not wholly-owned,
if such shares are issued pro rata to its shareholders.


 


32.24     Condition subsequent


 


Within 20 Business Days of request by the
Security Agent (or such longer period as the Company and the Security Agent (in
its sole discretion) may agree), the Company shall enter into a Transfer
of Title for Security Agreement and/or an Agreement on the Security Assignment
of Intellectual Property Rights (on terms substantially the same as the terms
of the existing Security Documents), if the Security Agent considers it
necessary to do so to protect the legitimate interests of the Finance Parties
(taking into account (i) the value of the assets subject to security under
the existing Security Documents as a whole and (ii) the proportion of the
costs associated with the taking and perfection of the additional security to
the value of the assets proposed to be subject to the additional security
requested by the Security Agent).


 


33.         Events of
Default


 


Each of the events or circumstances set out in
Clause 33 is an Event of Default (save for Clause 33.16 (Acceleration).


 


33.1       Non-payment


 


An Obligor does not pay on the due date any
amount payable pursuant to a Finance Document at the place at and in the
currency in which it is expressed to be payable unless:


 


(a)            its
failure to pay is caused by:


 


(i)           administrative
or technical error; or


 


(ii)          a
Disruption Event; and


 


(b)           payment
is made within 3 Business Days of its due date.


 


33.2       Financial
covenants


 


Any requirement of Clause 31 (Financial covenants) is not satisfied.


 


33.3       Other
obligations


 


(a)         Any
person (other than a Finance Party) does not comply with Clauses 32.4 (Disposals), 32.5 (Merger), 32.14
(Financial Indebtedness), 32.16 (Acquisitions), 32.21 (Joint ventures)
and 32.22 (Guarantees and Security) (other than
paragraph (c) thereof).


 


(b)         An
Obligor does not comply with any provision of the Finance Documents (other than
those referred to in Clause 33.1 (Non-payment)
and Clause 33.2 (Financial covenants)
and paragraph (a) above), unless the failure to comply is capable of
remedy and is remedied within 20 Business 


 


93

















 


Days
of the earlier of the Agent giving notice to the Company or the Company
becoming aware of the failure to comply.


 


33.4       Misrepresentation


 


Any representation or statement made or deemed
to be made by an Obligor in the Finance Documents or any other document
delivered by or on behalf of any Obligor under or in connection with any
Finance Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made unless the facts or
circumstances underlying the misrepresentation are capable of remedy and are
remedied within the earlier of 20 Business Days of the Agent giving notice to
the Company and the Company becoming aware of the misrepresentation.


 


33.5       Cross
default


 


(a)         Any
Financial Indebtedness of any member of the Group is not paid when due nor
within any originally applicable grace period.


 


(b)         Any
Financial Indebtedness of any member of the Group is declared to be or
otherwise becomes due and payable prior to its specified maturity as a result
of an event of default (however described).


 


(c)         Any
commitment for any Financial Indebtedness of any member of the Group is
cancelled or suspended by a creditor of any member of the Group as a result of
an event of default (however described).


 


(d)         Any
creditor of any member of the Group becomes entitled to declare any Financial
Indebtedness of any member of the Group due and payable prior to its specified
maturity as a result of an event of default (however described).


 


(e)         No
Event of Default will occur under this Clause 33.5 if the aggregate amount of
Financial Indebtedness or commitment for Financial Indebtedness falling within
paragraphs (a) to (d) above is less than €1,000,000 (or its
equivalent in any other currency or currencies).


 


33.6       Insolvency


 


(a)         A
member of the Group is unable or admits inability to pay its debts as they fall
due, suspends making payments on any of its debts or, by reason of actual or
anticipated financial difficulties, commences negotiations with one or more of
its creditors with a view to rescheduling any of its indebtedness.


 


(b)         The
value of the assets of any member of the Group is less than its liabilities
(taking into account contingent and prospective liabilities).


 


(c)         A
moratorium is declared in respect of any indebtedness of any member of the
Group.


 


33.7       Insolvency
proceedings


 


(a)         In
relation to a member of the Group having its seat in Germany:


 


(i)             a
petition for insolvency proceedings in respect of its assets (Antrag auf Eröffnung eines Insolvenzverfahrens)
is filed, threatened to be filed or any event occurs which constitutes a cause
for the initiation of insolvency proceedings (Eröffnungsgrund)
as set out in sections 17 et seq. of the German Insolvency Code (Insolvenzordnung); or


 


94

















 


(ii)           actions
are taken pursuant to section 21 of the German Insolvency Code by a
competent court; or


 


(iii)          it
commences negotiations with one or more of its creditors with a view to the
general readjustment or rescheduling of its indebtedness; or


 


(b)         with
respect to any member of the Group located outside Germany, any corporate
action, legal proceedings or other procedure or step is taken in relation to:


 


(i)            the
suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) of any member of the Group other than a
solvent liquidation or reorganisation of any member of the Group which is not
an Obligor;


 


(ii)            a
composition, compromise, assignment or arrangement with any creditor of any
member of the Group;


 


(iii)          the
appointment of a liquidator (other than in respect of a solvent liquidation of
a member of the Group which is not an Obligor), receiver, administrative
receiver, administrator, compulsory manager or other similar officer in respect
of any member of the Group or any of its assets; or


 


(iv)          enforcement
of any Security over any assets of any member of the Group, or


 


(c)         any
analogous procedure or step is taken in any jurisdiction,


 


provided that no Event of Default shall have
occurred under this Clause 33.7 in respect of (A) an amalgamation,
demerger, merger, consolidation or corporate reconstruction on a solvent basis
of a member of the Group which is not an Obligor, or (B) any winding-up
petition which is frivolous or vexatious and is discharged, stayed or dismissed
within 14 days of commencement and prior to its advertisement.


 


(d)         unless
the context otherwise requires, a reference in each Finance Document in respect
of an entity incorporated in Finland to:


 


(i)             winding-up,
administration or dissolution includes any declaration of bankruptcy (asetettu konkurssiin);


 


(ii)            an insolvency
includes a bankruptcy (konkurssi) and
any business restructuring (yrityssaneeraus);


 


(iii)           a
liquidator in bankruptcy includes a “pesänhoitaja”;


 


(iv)          an
administrator includes a “selvittäjä” and
“valvoja” in a business restructuring (yrityssaneeraus); and


 


(v)           an
attachment includes a “takavarikko”
and/or any other “turvaamistoimi” granted in
accordance with Finnish law.


 


33.8       Creditors’
process


 


Any expropriation, attachment, sequestration,
distress or execution or any analogous process in any jurisdiction affects any
asset or assets of a member of the Group and is not discharged within 5
Business Days.


 


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33.9       Ownership
of the Obligors


 


An Obligor (other than the Company) is not or
ceases to be a Subsidiary of the Company.


 


33.10     Unlawfulness


 


It is or becomes unlawful for an Obligor to
perform any of its obligations under the Finance Documents.


 


33.11     Repudiation


 


An Obligor repudiates a Finance Document or
evidences an intention to repudiate a Finance Document.


 


33.12     Security
and guarantees


 


Any Security Document or any guarantee in, or any subordination under,
any Finance Document is not in full force and effect or any Security Document
does not create in favour of the Security Agent for the benefit of the Finance
Parties, the Security which it is expressed to create fully perfected and with
the ranking and priority it is expressed to have in a manner and to an extent
which is or is reasonably likely to be materially adverse to the interests of the
Lenders under the Finance Documents.


 


33.13     Material
adverse change


 


The Majority Lenders (acting reasonably)
determine that a Material Adverse Effect exists, has occurred or might
reasonably be expected to occur.


 


33.14     Litigation


 


(a)         Any litigation, arbitration, proceeding or dispute is started or
threatened or there are any circumstances likely to give rise to any
litigation, arbitration, proceeding or dispute, in each case which, if
adversely determined, might reasonably be expected to have a Material Adverse
Effect.


 


(b)         Paragraph (a) shall not apply to any litigation, arbitration or
administrative proceedings which are vexatious or frivolous.


 


33.15     Cessation
of business


 


Any Obligor suspends or ceases (or threatens to suspend or cease) to
carry on all or a material part of its business except as part of a Permitted
Merger, Permitted Transaction or a Permitted Disposal.


 


33.16     Acceleration


 


(a)         On
and at any time after the occurrence of an Event of Default which is continuing
the Agent may, and shall if so directed by the Majority Lenders, by notice to
the Company:


 


(i)             cancel
the Total Commitments whereupon they shall immediately be cancelled;


 


(ii)            declare
that all or part of the Utilisations, together with accrued interest, and all
other amounts accrued or outstanding under the Finance Documents be immediately
due and payable, whereupon they shall become immediately due and payable;


 


(iii)           declare
that all or part of the Utilisations be payable on demand, whereupon they shall
immediately become payable on demand by the Agent on the instructions of the
Majority Lenders; and/or


 


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(iv)          declare
that full cash cover in respect of each Letter of Credit or Bank Guarantee is
immediately due and payable whereupon it shall become immediately due and
payable.


 


(b)         Promptly after being notified by the Agent of the Acceleration Date,
each Ancillary Lender shall by notice to the Company:


 


(i)             cancel its Ancillary Commitment whereupon it shall immediately be cancelled;


 


(ii)            declare that all or the corresponding part of the utilisations under any
Ancillary Facility provided by that Ancillary Lender, together with accrued
interest, full cash cover in respect of all or the corresponding part of the
contingent liabilities of that Ancillary Lender under that Ancillary Facility,
and all or the corresponding part of all other amounts accrued or outstanding
in respect of that Ancillary Facility be immediately due and payable, whereupon
they shall become immediately due and payable; and/or


 


(iii)           declare that all or the corresponding part of the utilisations under any
Ancillary Facility provided by that Ancillary Lender, together with accrued
interest, full cash cover in respect of all or the corresponding part of the
contingent liabilities of that Ancillary Lender under that Ancillary Facility,
and all or the corresponding part of all other amounts accrued or outstanding
in respect of that Ancillary Facility be payable upon demand, whereupon they
shall immediately become payable on demand by that Ancillary Lender (on the
instructions of the Agent, if so directed by the Majority Lenders).


 


(c)         No Ancillary Lender may cancel the whole or any part of its Ancillary
Commitment, declare that all or part of the utilisations under an Ancillary
Facility provided by that Ancillary Lender be immediately due and payable or
require the payment of cash cover in respect of all or any part of any
contingent liabilities of that Ancillary Lender under an Ancillary Facility
unless the Agent has delivered a notice to the Company pursuant to
sub-paragraph (ii) of paragraph (a) of this Clause 26.16.


 


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SECTION 9


 


CHANGES
TO PARTIES


 


34.                           Changes
to the Lenders


 


34.1                     Assignments
and transfers by the Lenders


 


Subject to this Clause 34, a Lender (the “Existing  Lender”)
may:


 


(a)                                   assign any of its rights; or


 


(b)                                  transfer by novation any of its rights and obligations,


 


to another bank or financial institution or to
a trust, fund or other entity which is regularly engaged in or established for
the purpose of making, purchasing or investing in loans, securities or other
financial assets (the “New Lender”).


 


34.2                     Conditions
of assignment or transfer


 


(a)                            The consent of the Company is required for an assignment or transfer by
an Existing Lender, unless the assignment or transfer is (i) prior to the
Syndication Date, provided the New Lender is on the list of potential syndicate
members agreed by the Company and the Agent, (ii) to another Existing
Lender or an Affiliate of a Existing Lender or (iii) made while an Event
of Default is continuing.


 


(b)                           The consent of the Company to an assignment or transfer must not be unreasonably
withheld or delayed.  The Company will be
deemed to have given its consent five Business Days after the Existing Lender
has requested it unless consent is expressly refused by the Company within that
time.


 


(c)                            The consent of the Company to an assignment or transfer must not be
withheld solely because the assignment or transfer may result in an increase to
the Mandatory Cost.


 


(d)                           The consent of the Issuing Bank to an assignment or transfer is required
in accordance with paragraph (a) of Clause 7.2 (Assignments
and transfers).


 


(e)                            An assignment will only be effective on:


 


(i)                                      receipt by the Agent of written confirmation from the New Lender (in
form and substance satisfactory to the Agent) that the New Lender will assume
the same obligations to the other Finance Parties as it would have been under
if it was an Original Lender; and


 


(ii)                                   performance by the Agent of all necessary “know your customer” or other
similar checks under all applicable laws and regulations in relation to such
assignment to a New Lender, the completion of which the Agent shall promptly
notify to the Existing Lender and the New Lender.


 


(f)                              A transfer will only be effective if the procedure set out in Clause 34.5
(Procedure for transfer) is
complied with.


 


(g)                           Any assignment or transfer by an Existing Lender to a New Lender shall
only be effective if it transfers or assigns the Existing Lender’s share of
each Facility pro rata.


 


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(h)                           If:


 


(i)                                      a Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office; and


 


(ii)                                   as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged to make a payment to the
New Lender or Lender acting through its new Facility Office under Clause 23 (Tax gross-up and indemnities) or Clause 24
(Increased Costs),


 


then the New Lender or Lender acting through
its new Facility Office is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender or Lender acting through its previous
Facility Office would have been if the assignment, transfer or change had not
occurred.


 


34.3                     Assignment
or transfer fee


 


The New Lender shall, on the date upon which an
assignment or transfer takes effect, pay to the Agent (for its own account) a
fee of €2,000.


 


34.4                     Limitation
of responsibility of Existing Lenders


 


(a)                            Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender for:


 


(i)                                      the legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other documents;


 


(ii)                                   the financial condition of any Obligor;


 


(iii)                                the performance and observance by any Obligor of its obligations under
the Finance Documents or any other documents; or


 


(iv)                               the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other document,


 


and any representations or warranties implied
by law are excluded.


 


(b)                           Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:


 


(i)                                      has made (and shall continue to make) its own independent investigation
and assessment of the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by the Existing Lender
in connection with any Finance Document; and


 


(ii)                                   will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities whilst any amount is
or may be outstanding under the Finance Documents or any Commitment is in
force.


 


(c)                            Nothing in any Finance Document obliges an Existing Lender to:


 


(i)                                      accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 34; or


 


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(ii)                                   support any losses directly or indirectly incurred by the New Lender by
reason of the non-performance by any Obligor of its obligations under the Finance
Documents or otherwise.


 


34.5                     Procedure
for transfer


 


(a)                            Subject to the conditions set out in Clause 34.2 (Conditions of assignment or transfer) a
transfer is effected in accordance with paragraph (c) below when the Agent
executes an otherwise duly completed Transfer Certificate delivered to it by
the Existing Lender and the New Lender. 
The Agent shall, subject to paragraph (b) below, as soon as
reasonably practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that
Transfer Certificate.


 


(b)                           The Agent shall only be obliged to execute a Transfer Certificate
delivered to it by the Existing Lender and the New Lender once it is satisfied
it has complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations in relation to the transfer to such
New Lender.


 


(c)                            On the Transfer Date:


 


(i)                                      to the extent that in the Transfer Certificate the Existing Lender seeks
to transfer by novation its rights and obligations under the Finance Documents
each of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their
respective rights against one another under the Finance Documents shall be
cancelled (being the “Discharged Rights and
Obligations”);


 


(ii)                                   each of the Obligors and the New Lender shall assume obligations towards
one another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and the
Existing Lender;


 


(iii)                                the Agent, the Arranger, the Security Agent, the New Lender, the other
Lenders, the Issuing Bank and any relevant Ancillary Lenders shall acquire the
same rights and assume the same obligations between themselves as they would
have acquired and assumed had the New Lender been an Original Lender with the
rights and/or obligations acquired or assumed by it as a result of the transfer
and to that extent the Agent, the Arranger, the Security Agent, the Issuing
Bank, any relevant Ancillary Lender and the Existing Lender shall each be
released from further obligations to each other under the Finance Documents;
and


 


(iv)                               the New Lender shall become a Party as a “Lender”.


 


34.6                     Copy
of Transfer Certificate to Company


 


The Agent shall, as soon as reasonably
practicable after it has executed a Transfer Certificate, send to the Company a
copy of that Transfer Certificate.


 


34.7                     Disclosure
of information


 


Any Lender may disclose to any of its
Affiliates and any other person:


 


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(a)                                   to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and obligations under
this Agreement;


 


(b)                                  with (or through) whom that Lender enters into (or may potentially enter
into) any sub-participation in relation to, or any other transaction under
which payments are to be made by reference to, this Agreement or any Obligor;


 


(c)                                   to whom, and to the extent that, information is required to be disclosed
by any applicable law or regulation; or


 


(d)                                  for whose benefit that Lender charges, assigns or otherwise creates
Security (or may do so) pursuant to Clause 34.8 (Security
over Lenders’ rights),


 


any information about any Obligor, the Group
and the Finance Documents as that Lender shall consider appropriate if, in
relation to paragraphs (a), (b) and (d) (in respect of 26.8 (b) (Creditors’ process)) above, the person to whom the
information is to be given has entered into a Confidentiality Undertaking.  This Clause supersedes any previous agreement
relating to the confidentiality of this information.


 


34.8                     Security
over Lenders’ rights


 


In addition to the other rights provided to
Lenders under this Clause 34, each Lender may without consulting with or
obtaining consent from any Obligor, at any time charge, assign or otherwise
create Security in or over (whether by way of collateral or otherwise) all or
any of its rights under any Finance Document to secure obligations of that
Lender including:


 


(a)                                   any charge, assignment or other Security to secure obligations to a
federal reserve or central bank; and


 


(b)                                  in the case of any Lender which is a fund, any charge, assignment or
other Security granted to any holders (or trustee or representatives of
holders) of obligations owed, or securities issued, by that Lender as Security
for those obligations or securities,


 


except that no such charge, assignment or
Security shall:


 


(i)                                  release a Lender from any of its obligations under the Finance Documents
or substitute the beneficiary of the relevant charge, assignment or Security
for the Lender as a party to any of the Finance Documents; or


 


(ii)                               require any payments to be made by an Obligor or grant to any person any
more extensive rights than those required to be made or granted to the relevant
Lender under the Finance Documents.


 


35.                           Changes
to the Obligors


 


35.1                     Assignments
and transfer by Obligors


 


No Obligor may assign any of its rights or
transfer any of its rights or obligations under the Finance Documents.


 


35.2                     Additional
Borrowers


 


(a)                            Subject to compliance with the provisions of paragraphs (c) and (d) of
Clause 30.6 (“Know your customer” checks),
the Company may request that any of its wholly owned Subsidiaries becomes an
Additional Borrower.  That Subsidiary
shall become an Additional Borrower if:


 


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(i)                                      all the Lenders participating in the relevant Facility approve the
addition of that Subsidiary;


 


(ii)                                   the Company delivers to the Agent a duly completed and executed
Accession Letter;


 


(iii)                                the Company confirms that no Default is continuing or would occur as a
result of that Subsidiary becoming an Additional Borrower; and


 


(iv)                               the Agent has received all of the documents and other evidence listed in
Part II of Schedule 5 (Conditions
precedent) in relation to that Additional Borrower, each in form and
substance satisfactory to the Agent.


 


(b)                           The Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it) all
the documents and other evidence listed in Part II of Schedule 5 (Conditions precedent).


 


35.3                     Resignation
of a Borrower


 


(a)                            In this Clause 35.3 (Resignation of a Borrower),
Clause 28.5 (Resignation of a Guarantor) and
Clause 28.7 (Resignation and release of Security on
disposal), “Third Party Disposal”
means the disposal of an Obligor to a person which is not a member of the Group
where that disposal is permitted under Clause 32.4 (Disposals)
or made with the approval of the Majority Lenders (and the Parent has confirmed
this is the case).


 


(b)                           If a Borrower is the subject of a Third Party Disposal, the Company may
request that such Borrower (other than the Company) ceases to be a Borrower by
delivering to the Agent a Resignation Letter.


 


(c)                            The Agent shall accept a Resignation Letter and notify the Company and
the other Finance Parties of its acceptance if:


 


(i)                                      the Company has confirmed that no Default is continuing or would result
from the acceptance of the Resignation Letter;


 


(ii)                                   the Borrower is under no actual or contingent obligations as a Borrower
under any Finance Documents;


 


(iii)                                where the Borrower is also a Guarantor (unless its resignation has been
accepted in accordance with Clause 35.5 (Resignation of a Guarantor)),
its obligations in its capacity as Guarantor continue to be legal, valid,
binding and enforceable and in full force and effect (subject to the Legal
Reservations) and the amount guaranteed by it as a Guarantor is not decreased
(and the Company has confirmed this is the case); and


 


(iv)                               the Company has confirmed that it shall ensure that any relevant Net
Sale Proceeds will be applied in accordance with Clause 18.5 (Mandatory prepayment — Net Sale Proceeds).


 


(d)                           Upon notification by the Agent to the Company of its acceptance of the
resignation of a Borrower, that company shall cease to be a Borrower and shall
have no further rights or obligations under the Finance Documents as a Borrower
except that the resignation shall not take effect (and the Borrower will
continue to have rights and obligations under the Finance Documents) until the
date on which the Third Party Disposal takes effect.


 


102

















 


(e)                            The Agent may, at the cost and expense of the Company, require a legal
opinion from counsel to the Agent confirming the matters set out in paragraph
(c)(iii) above and the Agent shall be under no obligation to accept a
Resignation Letter until it has obtained such opinion in form and substance
satisfactory to it.


 


35.4                     Additional
Guarantors


 


(a)                            Subject to compliance with the provisions of paragraphs (c) and (d) of
Clause 30.6 (“Know your customer” checks),
the Company may request that any of its wholly owned Subsidiaries become an
Additional Guarantor.  That Subsidiary
shall become an Additional Guarantor if:


 


(i)                                      (except in the case of an Additional Guarantor incorporated in a
jurisdiction of incorporation of an existing Obligor) the Agent approves the
addition of that Subsidiary;


 


(ii)                                   the Company delivers to the Agent a duly completed and executed
Accession Letter; and


 


(iii)                                the Agent has received all of the documents and other evidence listed in
Part II of Schedule 5 (Conditions
precedent) in relation to that Additional Guarantor, each in form
and substance satisfactory to the Agent.


 


(b)                           The Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it) all
the documents and other evidence listed in Part II of Schedule 5 (Conditions precedent).


 


35.5                     Resignation
of a Guarantor


 


(a)                            The Company may request that a Guarantor (other than the Company) ceases
to be a Guarantor by delivering to the Agent a Resignation Letter if that
Guarantor is being disposed of by way of a Third Party Disposal (as defined in
Clause 35.3 (Resignation of a Borrower)) and the Company has confirmed this
is the case.


 


(b)                           The Agent shall accept a Resignation Letter and notify the Company and
the Lenders of its acceptance if:


 


(i)                                      the Company has confirmed that no Default is continuing or would result
from the acceptance of the Resignation Letter;


 


(ii)                                   no payment is due from the Guarantor under Clause 28.1 (Guarantee and indemnity);


 


(iii)                                where the Guarantor is also a Borrower, it is under no actual or
contingent obligations as a Borrower and has resigned and ceased to be a Borrower
under Clause 35.3 (Resignation of a Borrower);
and


 


(iv)                               the Company has confirmed that it shall ensure that the Net Sale
Proceeds will be applied, in accordance with Clause 18.5 (Mandatory
Prepayment — Net Sale Proceeds).


 


(c)                            The resignation of that Guarantor shall not be effective until the date
of the relevant Third Party Disposal at which time that company shall cease to
be a Guarantor and shall have no further rights or obligations under the
Finance Documents as a Guarantor.


 


35.6                     Repetition
of Representations


 


Delivery of an Accession Letter constitutes
confirmation by the relevant Subsidiary that the Repeating Representations and
each of the representations set out in Clauses 29.5 (Validity and admissibility in evidence), 29.7 (Deduction of Tax) and 29.8 (No filing or stamp taxes) are true 


 


103

















 


and correct in relation to it as at the date of
delivery as if made by reference to the facts and circumstances then existing.


 


35.7                     Resignation
and release of security on disposal


 


(a)                            If a Borrower or Guarantor is or is proposed to be the subject of a
Third Party Disposal then:


 


(i)                                      where that Borrower or Guarantor created Security pursuant to any
Finance Document over any of its assets or business in favour of the Security
Agent, or Security pursuant to any Finance Document in favour of the Security
Agent was created over the shares (or equivalent) of that Borrower or
Guarantor, the Security Agent may at the cost and request of the Company,
release those assets, business or shares (or equivalent) and issue certificates
of non-crystallisation;


 


(ii)                                   the resignation of that Borrower or Guarantor and related release of
Security pursuant to any Finance Document referred to in paragraph (i) above
shall not become effective until the date of that disposal; and


 


(iii)                                if the disposal of that Borrower or Guarantor is not made, the
Resignation Letter of that Borrower or Guarantor and the related release of
Security referred to in paragraph (i) above shall have no effect and the
obligations of the Borrower or Guarantor and the Security pursuant to any
Finance Document created or intended to be created by or over that Borrower or
Guarantor shall continue in full force and effect.


 


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SECTION 10


 


THE
FINANCE PARTIES


 


36.                           Role of
the Agent, the Security Agent and the Arranger


 


36.1                     Appointment
of the Agent and the Security Agent


 


(a)                            Each other Finance Party appoints the Agent to act as its agent under
and in connection with the Finance Documents.


 


(b)                           Each other Finance Party appoints the Security Agent to act as security
trustee under and in connection with the Finance Documents.


 


(c)                            Each other Finance Party authorises each of the Agent and the Security
Agent to exercise the rights, powers, authorities and discretions specifically
given to it under or in connection with the Finance Documents together with any
other incidental rights, powers, authorities and discretions.


 


(d)                           For the avoidance of doubt, each other Finance Party authorises the
Agent to execute and deliver the Subordination Agreement.


 


36.2                     Duties
of the Agent and the Security Agent


 


(a)                            The Agent shall promptly forward to a Party the original or a copy of
any document which is delivered to the Agent for that Party by any other Party.


 


(b)                           Except where a Finance Document specifically provides otherwise, the
Agent is not obliged to review or check the adequacy, accuracy or completeness
of any document it forwards to another Party.


 


(c)                            If the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a Default,
it shall promptly notify the Finance Parties.


 


(d)                           If the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the Agent or
the Arranger) under this Agreement it shall promptly notify the other Finance
Parties.


 


(e)                            The Agent shall promptly send to the Security Agent such certification
as the Security Agent may require pursuant to paragraph 7 (Basis of distribution) of Schedule 10 (Security Agency provisions).


 


(f)                              The duties of the Agent and the Security Agent under the Finance
Documents are solely mechanical and administrative in nature.


 


36.3                     Role
of the Arranger


 


Except as specifically provided in the Finance
Documents, the Arranger has no obligations of any kind to any other Party under
or in connection with any Finance Document.


 


36.4                     Role
of the Security Agent


 


The Security Agent shall not be an agent of
(except as expressly provided in any Finance Document) any Finance Party under
or in connection with any Finance Document.


 


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36.5                     No
fiduciary duties


 


(a)                            Nothing in this Agreement constitutes the Agent, the Security Agent
(except as expressly provided in any Finance Document) or the Arranger as a
trustee or fiduciary of any other person.


 


(b)                           Neither the Agent, the Security Agent (except as expressly provided in
any Finance Document) nor the Arranger shall be bound to account to any Lender
for any sum or the profit element of any sum received by it for its own
account.


 


36.6                     Business
with the Group


 


The Agent, the Security 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.


 


36.7                     Rights
and discretions of the Agent and the Security Agent


 


(a)                            The Agent and the Security Agent may rely on:


 


(i)                                      any representation, notice or document believed by it to be genuine,
correct and appropriately authorised ; and


 


(ii)                                   any statement made by a director, authorised signatory or employee of
any person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify.


 


(b)                           The Agent and the Security Agent may assume (unless it has received
notice to the contrary in its capacity as agent for the Lenders  or, as the case may be, as security trustee for the
Finance Parties) that:


 


(i)                                      no Default has occurred (unless it has actual knowledge of a Default
arising under Clause 33.1 (Non-payment));


 


(ii)                                   any right, power, authority or discretion vested in any Party or the
Majority Lenders has not been exercised; and


 


(iii)                                any notice or request made by the Company (other than a Utilisation
Request or Selection Notice) is made on behalf of and with the consent and
knowledge of all the Obligors.


 


(c)                            Each of the Agent and the Security Agent may engage, pay for and rely on
the advice or services of any lawyers, accountants, surveyors or other experts.


 


(d)                           Each of the Agent and the Security Agent may act in relation to the
Finance Documents through its personnel and agents.


 


(e)                            The Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this Agreement.


 


(f)                              Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent, the Security Agent nor the Arranger is obliged to
do or omit to do anything if it would or might in its reasonable opinion
constitute a breach of any law or regulation or a breach of a fiduciary duty or
duty of confidentiality.


 


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36.8                     Majority
Lenders’ instructions


 


(a)                            Unless a contrary indication appears in a Finance Document, the Agent
and the Security Agent shall (i) exercise any right, power, authority or
discretion vested in it as Agent or Security Agent (as the case may be) in
accordance with any instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising any right, power,
authority or discretion vested in it as Agent or Security Agent, as the case
may be) and (ii) not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with an instruction of the
Majority Lenders.


 


(b)                           Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the Finance
Parties.


 


(c)                            Each of the Agent and the Security Agent may refrain from acting in
accordance with the instructions of the Majority Lenders (or, if appropriate,
the Lenders) until it has received such security as it may require for any
cost, loss or liability (together with any associated VAT) which it may incur
in complying with the instructions.


 


(d)                           In the absence of instructions from the Majority Lenders (or, if
appropriate, the Lenders), each of the Agent and the Security Agent may act (or
refrain from taking action) as it considers to be in the best interest of the
Lenders.


 


(e)                            Neither the Agent nor the Security Agent is authorised to act on behalf
of a Lender (without first obtaining that Lender’s consent) in any legal or
arbitration proceedings relating to any Finance Document.


 


36.9                     Responsibility
for documentation


 


Neither the Agent, the Security Agent nor the
Arranger:


 


(a)                                   is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the Security
Agent, the Arranger, an Obligor or any other person given in or in connection
with any Finance Document or the Information Memorandum; or


 


(b)                                  is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in connection
with any Finance Document.


 


36.10               Exclusion
of liability


 


(a)                            Without limiting paragraph (b) below (and without prejudice to the
provisions of paragraph (e) of Clause 40.11 (Disruption to Payment Systems etc)), neither the Agent nor
the Security Agent will be liable including without limitation for negligence
or any other category of liability whatsoever for any action taken by it under
or in connection with any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.


 


(b)                           No Party (other than the Agent or the Security Agent) may take any
proceedings against any officer, employee or agent of the Agent or the Security
Agent in respect of any claim it might have against the Agent or the Security
Agent or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document and any officer, employee
or agent of the Agent or the Security Agent may rely on this Clause.


 


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(c)                            Neither the Agent nor the Security Agent will be liable for any delay
(or any related consequences) in crediting an account with an amount required
under the Finance Documents to be paid by it if it has taken all necessary
steps as soon as reasonably practicable to comply with the regulations or
operating procedures of any recognised clearing or settlement system used by it
for that purpose.


 


(d)                           Nothing in this Agreement shall oblige the Agent or the Arranger to
carry out any “know your customer” or other checks in relation to any person on
behalf of any Lender and each Lender confirms to the Agent and the Arranger
that it is solely responsible for any such checks it is required to carry out
and that it may not rely on any statement in relation to such checks made by
the Agent or the Arranger.


 


36.11           Lenders’
indemnity to the Agent and the Security Agent


 


Each Lender shall (in proportion to its share
of the Total Commitments or, if the Total Commitments are then zero, to its
share of the Total Commitments immediately prior to their reduction to zero)
indemnify the Agent and the Security Agent, within three Business Days of
demand, against any cost, loss or liability including without limitation for
negligence or any other category of liability whatsoever incurred by the Agent
or the Security Agent (otherwise than by reason of its gross negligence or
wilful misconduct) (or in the case of any cost, loss or liability pursuant to
Clause 40.11 (Disruption to Payment Systems
etc.) notwithstanding the Agent’s negligence, gross negligence or
any other category of liability whatsoever but not including any claim based on
the fraud of the Agent) in acting as Agent or, as the case may be, Security
Agent under the Finance Documents (unless it has been reimbursed by an Obligor
pursuant to a Finance Document).


 


36.12           Resignation
of the Agent or the Security Agent


 


(a)                           The Agent or the Security Agent may resign and appoint one of its
Affiliates acting through an office in the United Kingdom, Germany or Finland
as successor by giving notice to the other Finance Parties and the Company.


 


(b)                           Alternatively the Agent or the Security Agent may resign by giving
notice to the other Finance Parties and the Company, in which case the Majority
Lenders (after consultation with the Company) may appoint a successor Agent or,
as the case may be, Security Agent in each case acting through an office in the
United Kingdom, Germany or Finland.


 


(c)                            If the Majority Lenders have not appointed a successor Agent or, as the
case may be, Security Agent in accordance with paragraph (b) above within
30 days after notice of resignation was given, the Agent or, as the case may
be, Security Agent (after consultation with the Company) may appoint a
successor Agent or Security Agent.


 


(d)                           The retiring Agent or Security Agent shall, at its own cost, make
available to its successor such documents and records and provide such
assistance as its successor may reasonably request for the purposes of
performing its functions as Agent or Security Agent under the Finance
Documents.


 


(e)                            The resignation notice of the Agent or Security Agent shall only take
effect upon the appointment of a successor.


 


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(f)                             Upon the appointment of a successor, the retiring Agent or Security
Agent shall be discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause 36. Its
successor and each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if such successor had
been an original Party.


 


(g)                            After consultation with the Company, the Majority Lenders may, by notice
to the Agent or, as the case may be, the Security Agent, require it to resign
in accordance with paragraph (b) above. 
In this event, the Agent or, as the case may be, the Security Agent
shall resign in accordance with paragraph (b) above.


 


36.13           Confidentiality


 


(a)                           The Agent (in acting as agent for the Finance Parties) and the Security
Agent (in acting as security trustee for the Finance Parties) shall be regarded
as acting through its respective agency or security trustee division which in
each case shall be treated as a separate entity from any other of its divisions
or departments.


 


(b)                           If information is received by another division or department of the
Agent or, as the case may be, the Security Agent, it may be treated as
confidential to that division or department and the Agent or, as the case may
be, the Security Agent shall not be deemed to have notice of it.


 


36.14           Relationship
with the Lenders


 


(a)                           The Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has received
not less than five Business Days prior notice from that Lender to the contrary
in accordance with the terms of this Agreement.


 


(b)                           Each Lender shall supply the Agent with any information required by the
Agent in order to calculate the Mandatory Cost in accordance with Schedule 7 (Mandatory Cost  formulae).


 


36.15           Credit
appraisal by the Lenders


 


Without affecting the responsibility of any
Obligor for information supplied by it or on its behalf in connection with any
Finance Document, each Lender confirms to the Agent, the Security Agent and the
Arranger that it has been, and will continue to be, solely responsible for
making its own independent appraisal and investigation of all risks arising
under or in connection with any Finance Document including but not limited to:


 


(a)                                  the financial condition, status and nature of each member of the Group;


 


(b)                                  the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, Security, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Finance Document;


 


(c)                                   whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, Security, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Finance Document; and


 


(d)                                  the adequacy, accuracy and/or completeness of the Information Memorandum
and any other information provided by the Agent, the Security Agent, any Party
or by any other 


 


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person
under or in connection with any Finance Document, the transactions contemplated
by the Finance Documents or any other agreement, Security, arrangement or
document entered into, made or executed in anticipation of, under or in
connection with any Finance Document.


 


36.16           Reference
Banks


 


If a Reference Bank (or, if a Reference Bank is
not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender,
the Agent shall (in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.


 


36.17           Management
time of the Agent and the Security Agent


 


If an Event of Default has occurred and is
continuing, any amount payable to the Agent or the Security Agent under Clause 25.3
(Indemnity to the Agent  and the Security  Agent), Clause 27 (Costs and expenses) and Clause 36.11 (Lenders’ indemnity to the Agent  and the Security  Agent) shall include the cost of utilising
its management time or other resources and will be calculated on the basis of
such reasonable daily or hourly rates as it may notify to the Company and the
Lenders, and is in addition to any fee paid or payable to it under Clause 22 (Fees).


 


36.18           Security
Agency provisions


 


The provisions of Schedule 10 (Security Agency provisions) shall bind
each Party.


 


36.19           Deduction
from amounts payable by the Agent or the Security Agent


 


If any Party owes an amount to the Agent or the
Security Agent under the Finance Documents the Agent or the Security Agent (as
the case may be) may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent or the
Security Agent (as the case may be) would otherwise be obliged to make under
the Finance Documents and apply the amount deducted in or towards satisfaction
of the amount owed.  For the purposes of
the Finance Documents that Party shall be regarded as having received any
amount so deducted.


 


37.                         Parallel
Debt


 


(a)                           Each Obligor hereby irrevocably and unconditionally undertakes to pay to
the Security Agent amounts equal to any amounts owing from time to time by that
Obligor to any Finance Party under any Finance Document as and when those
amounts are due.


 


(b)                           Each Obligor and the Security Agent acknowledge that the obligations of
each Obligor under paragraph (a) are several and are separate and
independent from, and shall not in any way affect, the corresponding
obligations of that Obligor to any Finance Party under any Finance Document
(its “Corresponding Debt”)
provided that:


 


(i)                                      the amounts for which each Obligor is liable under paragraph (a) (its
“Parallel Debt”) shall be
decreased to the extent that its Corresponding Debt has been irrevocably paid
or (in the case of guarantee obligations) discharged; and


 


(ii)                                   the Corresponding Debt of each Obligor shall be decreased to the extent
that its Parallel Debt has been irrevocably paid or (in the case of guarantee
obligations) discharged; and


 


(iii)                                the Parallel Debt of an Obligor shall not exceed its Corresponding Debt.


 


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(c)                            For the purpose of this Clause 37, the Security Agent acts in its own
name and not as a trustee, and its claims in respect of the Parallel Debt shall
not be held on trust. The Security granted under the Secured Documents to the
Security Agent to secure the Parallel Debt is granted to the Security Agent in
its capacity as creditor of the Parallel Debt and shall not be held on trust.


 


(d)                           All monies received by the Security Agent pursuant to this Clause, and
all amounts received by the Security Agent from or by the enforcement of any
Security granted to secure the Parallel Debt, shall be applied in accordance
with paragraph 15 (Order of application)
of Schedule 10 (Security Agency provisions)
of this Agreement.


 


(e)                            Without limiting or affecting the Security Agent’s rights against the
Obligors (whether under this Clause or under any other provision of the Finance
Document), each Obligor acknowledges that:


 


(i)                                      nothing in this Clause shall impose any obligation on the Security Agent
to advance any sum to any Obligor or otherwise under any Finance Document,
except in its capacity as Senior Lender; and


 


(ii)                                   for the purpose of any vote taken under any Finance Document, the
Security Agent shall not be regarded as having any participation or commitment
other than those which it has in its capacity as a Lender.


 


38.                         Conduct
of business by the Finance Parties


 


No provision of this Agreement will:


 


(a)                                  interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;


 


(b)                                  oblige any Finance Party to investigate or claim any credit, relief, remission
or repayment available to it or the extent, order and manner of any claim; or


 


(c)                                   oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.


 


39.                         Sharing
among the Finance Parties


 


39.1                  Payments
to Finance Parties


 


If a Finance Party (a “Recovering
Finance Party”) receives or recovers any amount from an Obligor
other than in accordance with Clause 40 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:


 


(a)                                  the Recovering Finance Party shall, within three Business Days, notify
details of the receipt or recovery to the Agent;


 


(b)                                  the Agent shall determine whether the receipt or recovery is in excess
of the amount the Recovering Finance Party would have been paid had the receipt
or recovery been received or made by the Agent and distributed in accordance
with Clause 40 (Payment mechanics),
without taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution; and


 


(c)                                   the Recovering Finance Party shall, within three Business Days of demand
by the Agent, pay to the Agent an amount (the “Sharing
Payment”) equal to such receipt or recovery 


 


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less
any amount which the Agent determines may be retained by the Recovering Finance
Party as its share of any payment to be made, in accordance with Clause 40.5 (Partial payments).


 


39.2                  Redistribution
of payments


 


The Agent shall treat the Sharing Payment as if
it had been paid by the relevant Obligor and distribute it between the Finance
Parties (other than the Recovering Finance Party) in accordance with Clause 40.5
(Partial payments).


 


39.3                  Recovering
Finance Party’s rights


 


(a)                           On a distribution by the Agent under Clause 39.2 (Redistribution of payments), the
Recovering Finance Party will be subrogated to the rights of the Finance
Parties which have shared in the redistribution.


 


(b)                           If and to the extent that the Recovering Finance Party is not able to
rely on its rights under paragraph (a) above, the relevant Obligor shall
be liable to the Recovering Finance Party for a debt equal to the Sharing
Payment which is immediately due and payable.


 


39.4                  Reversal
of redistribution


 


If any part of the Sharing Payment received or
recovered by a Recovering Finance Party becomes repayable and is repaid by that
Recovering Finance Party, then:


 


(a)                                  each Finance Party which has received a share of the relevant Sharing
Payment pursuant to Clause 39.2 (Redistribution
of payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to the appropriate
part of its share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Finance Party for its proportion of any
interest on the Sharing Payment which that Recovering Finance Party is required
to pay); and


 


(b)                                  that Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable to the
reimbursing Finance Party for the amount so reimbursed.


 


39.5                  Exceptions


 


(a)                           This Clause 39 shall not apply to the extent that the Recovering Finance
Party would not, after making any payment pursuant to this Clause, have a valid
and enforceable claim against the relevant Obligor.


 


(b)                           A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings, if:


 


(i)                                      it notified that other Finance Party of the legal or arbitration
proceedings; and


 


(ii)                                   that other Finance Party had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings.


 


39.6                  Loss
sharing


 


(a)                           In this Clause:


 


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“Loss Sharing Date” means the date (if
any) on which the Agent exercises any of its rights under paragraph (a)(ii) and/or
(a)(iv) of Clause 33.16 (Acceleration)
or the date (if any) on which the Facilities are cancelled under Clause 18.3 (Change of control).


 


(b)                           If, at any time after the Loss Sharing Date, for any reason:


 


(i)                                      any outstandings under Facility B or any Ancillary Facility will not be
repaid and/or discharged; and


 


(ii)                                   any resulting loss is not shared between the Facility B Lenders and the
Ancillary Lenders pro rata to the amount which their respective exposures,
whether drawn or undrawn, bore to their total exposure, whether drawn or
undrawn, as at the Loss Sharing Date,


 


the Facility B Lenders and the Ancillary Lenders shall make such
payments between themselves as the Agent shall require to ensure that after
taking into account such payments, any such loss is shared between the Facility
B Lenders and the Ancillary Lenders pro rata to the amount which their
respective exposures, whether drawn or undrawn, bore to their total exposure,
whether drawn or undrawn, as at the Loss Sharing Date.


 


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SECTION 11


 


ADMINISTRATION


 


40.                         Payment
mechanics


 


40.1                  Payments
to the Agent


 


(a)                           On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor (subject to Clause 40.10 (Payments to the Security Agent) )or Lender
shall make the same available to the Agent (unless a contrary indication
appears in a Finance Document) for value on the due date at the time and in
such funds specified by the Agent as being customary at the time for settlement
of transactions in the relevant currency in the place of payment.


 


(b)                           Payment shall be made to such account in the principal financial centre
of the country of that currency (or, in relation to euro, in the principal
financial centre in a Participating Member State or London) with such bank as
the Agent specifies.


 


40.2                  Distributions
by the Agent


 


Each payment received by the Agent under the
Finance Documents for another Party shall, subject to Clause 40.3 (Distributions to  an  Obligor)
and Clause 40.4 (Clawback) and
Clause 40.10 (Payments to the Security Agent),
be made available by the Agent as soon as practicable after receipt to the
Party entitled to receive payment in accordance with this Agreement (in the
case of a Lender, for the account of its Facility Office), to such account as
that Party may notify to the Agent by not less than five Business Days’ notice
with a bank in the principal financial centre of the country of that currency
(or, in relation to euro, in the principal financial centre of a Participating
Member State or London).


 


40.3                  Distributions
to an Obligor


 


The Agent and the Security Agent may (with the
consent of the Obligor or in accordance with Clause 41 (Set-off)) apply any amount received by it
for that Obligor in or towards payment (on the date and in the currency and
funds of receipt) of any amount due from that Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to be so applied.


 


40.4                  Clawback


 


(a)                           Where a sum is to be paid to the Agent or the Security Agent under the
Finance Documents for another Party, the Agent or, as the case may be, the
Security Agent is not obliged to pay that sum to that other Party (or to enter
into or perform any related exchange contract) until it has been able to
establish to its satisfaction that it has actually received that sum.


 


(b)                           If the Agent or the Security Agent pays an amount to another Party and
it proves to be the case that it had not actually received that amount, then
the Party to whom that amount (or the proceeds of any related exchange
contract) was paid shall on demand refund the same to the Agent or, as the case
may be, the Security Agent together with interest on that amount from the date
of payment to the date of receipt by the Agent or, as the case may be, the
Security Agent, calculated by it to reflect its cost of funds.


 


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40.5                  Partial
payments


 


(a)                           If the Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by an Obligor under the Finance Documents, the
Agent shall apply that payment towards the obligations of that Obligor under
the Finance Documents in the following order:


 


(i)                                      first, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent, the Security Agent, the Issuing Bank or the Arranger
under the Finance Documents;


 


(ii)                                   secondly, in or towards payment pro rata of any accrued interest, fee or
commission due but unpaid under this Agreement or any Ancillary Facility
Document;


 


(iii)                                thirdly, in or towards payment pro rata of any principal due but unpaid
under this Agreement or any Ancillary Facility Document and any amount due but
unpaid under Clauses 14.4 (Claims under a
Letter of Credit or Bank Guarantee) and 14.5 (Indemnities);
and


 


(iv)                               fourthly, in or towards payment pro rata of any other sum due but unpaid
under the Finance Documents or any Ancillary Finance Document,


 


provided that the Agent shall not make any such
payments to any Ancillary Lender prior to the Agent delivering a notice to the
Company pursuant to paragraphs (a) (ii) or (a) (iv) of
Clause 33.16 (Acceleration) or any date on
which the Facilities are cancelled pursuant to Clause 18.3 (Change of
control).


 


(b)                           The Agent shall, if so directed by the Majority Lenders, vary the order
set out in paragraphs (a)(ii) to (iv) above.


 


(c)                            Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.


 


40.6                  No
set-off by Obligors


 


All payments to be made by an Obligor under the
Finance Documents shall be calculated and be made without (and free and clear
of any deduction for) set-off or counterclaim.


 


40.7                  Business
Days


 


(a)                           Any payment which is due to be made on a day that is not a Business Day
shall be made on the next Business Day in the same calendar month (if there is
one) or the preceding Business Day (if there is not).


 


(b)                           During any extension of the due date for payment of any principal or
Unpaid Sum under this Agreement interest is payable on the principal or Unpaid
Sum at the rate payable on the original due date.


 


40.8                  Currency
of account


 


(a)                           Subject to paragraphs (b) to (e) below, the Base Currency is
the currency of account and payment for any sum due from an Obligor under any
Finance Document.


 


(b)                           A repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or
Unpaid Sum shall be made in the currency in which that Utilisation or Unpaid
Sum is denominated on its due date.


 


(c)                            Each payment of interest shall be made in the currency in which the sum
in respect of which the interest is payable was denominated when that interest
accrued.


 


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(d)                           Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.


 


(e)                            Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.


 


40.9                  Change of
currency


 


(a)                           Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of any
country as the lawful currency of that country, then:


 


(i)                                      any reference in the Finance Documents to, and any obligations arising
under the Finance Documents in, the currency of that country shall be
translated into, or paid in, the currency or currency unit of that country
designated by the Agent (after consultation with the Company); and


 


(ii)                                   any translation from one currency or currency unit to another shall be
at the official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded up or down
by the Agent (acting reasonably).


 


(b)                           If a change in any currency of a country occurs, this Agreement will, to
the extent the Agent (acting reasonably and after consultation with the
Company) specifies to be necessary, be amended to comply with any generally
accepted conventions and market practice in the Relevant Interbank Market and
otherwise to reflect the change in currency.


 


40.10           Payments
to the Security Agent


 


Notwithstanding any other provision of any
Finance Document, at any time after any Security created by or pursuant to any
Security Document becomes enforceable, the Security Agent may require:


 


(a)                                  any Obligor to pay all sums due under any Finance Document; or


 


(b)                                  the Agent to pay all sums received or recovered from an Obligor under
any Finance Document,


 


in each case as the Security Agent may direct
for application in accordance with the terms of the Security Documents.


 


40.11           Disruption
to Payment Systems etc.


 


If either the Agent determines (in its
discretion) that a Disruption Event has occurred or the Agent is notified by
the Company that a Disruption Event has occurred:


 


(a)                                  the Agent may, and shall if requested to do so by the Company, consult
with the Company with a view to agreeing with the Company such changes to the
operation or administration of the Facilities as the Agent may deem necessary
in the circumstances;


 


(b)                                  the Agent shall not be obliged to consult with the Company in relation
to any changes mentioned in paragraph (a) if, in its opinion, it is not
practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such changes;


 


(c)                                   the Agent may consult with the Finance Parties in relation to any
changes mentioned in paragraph (a) but shall not be obliged to do so if,
in its opinion, it is not practicable to do so in the circumstances;


 


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(d)                                  any such changes agreed upon by the Agent and the Company shall (whether
or not it is finally determined that a Disruption Event has occurred) be
binding upon the Parties as an amendment to (or, as the case may be, waiver of)
the terms of the Finance Documents notwithstanding the provisions of Clause 46
(Amendments and Waivers);


 


(e)                                   the Agent shall not be liable for any damages, costs or losses
whatsoever (including, without limitation for negligence, gross negligence or
any other category of liability whatsoever but not including any claim based on
the fraud of the Agent) arising as a result of its taking, or failing to take,
any actions pursuant to or in connection with this Clause 40.11; and


 


(f)                                    the Agent shall notify the Finance Parties of all changes agreed
pursuant to paragraph (d) above.


 


41.                         Set-off


 


A Finance Party may set off any matured
obligation due from an Obligor under the Finance Documents (to the extent
beneficially owned by that Finance Party) against any matured obligation owed
by that Finance Party to that Obligor, regardless of the place of payment,
booking branch or currency of either obligation.  If the obligations are in different
currencies, the Finance Party may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the set-off.


 


42.                         Notices


 


42.1                  Communications
in writing


 


Any communication to be made under or in
connection with the Finance Documents shall be made in writing and, unless
otherwise stated, may be made by fax or letter.


 


42.2                  Addresses


 


The address and fax number (and the department
or officer, if any, for whose attention the communication is to be made) of
each Party for any communication or document to be made or delivered under or
in connection with the Finance Documents is:


 


(a)                                  in the case of the Company, that identified with its name in the
signature pages below;


 


(b)                                  in the case of each Lender, each Ancillary Lender or any other Original
Obligor, that notified in writing to the Agent on or prior to the date on which
it becomes a Party; and


 


(c)                                   in the case of the Agent, the Issuing Bank and the Security Agent, that
identified with its name in the signature pages below,


 


or any substitute address, fax number or
department or officer as the Party may notify to the Agent (or the Agent may
notify to the other Parties, if a change is made by the Agent) by not less than
five Business Days’ notice.


 


42.3                  Delivery


 


(a)                           Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be effective:


 


(i)                                      if by way of fax, when received in legible form; or


 


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(ii)                                   if by way of letter, when it has been left at the relevant address or
five Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that address,


 


and, if a particular department or officer is
specified as part of its address details provided under Clause 42.2 (Addresses), if addressed to that
department or officer.


 


(b)                           Any communication or document to be made or delivered to the Agent or
the Security Agent will be effective only when actually received by the Agent
and then only if it is expressly marked for the attention of the department or
officer identified with its signature below (or any substitute department or
officer as it shall specify for this purpose).


 


(c)                            All notices from or to an Obligor shall be sent through the Agent.


 


(d)                           Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or delivered to
each of the Obligors.


 


42.4                  Notification
of address and fax number


 


Promptly upon receipt of notification of an
address and fax number or change of address or fax number pursuant to Clause 42.2
(Addresses) or changing its own
address or fax number, the Agent shall notify the other Parties.


 


42.5                  Electronic
communication


 


(a)                           Any communication to be made between the Agent and a Lender or the
Company under or in connection with the Finance Documents may be made by
electronic mail or other electronic means, if the Agent and the relevant Lender
or the Company:


 


(i)                                      agree that, unless and until notified to the contrary, this is to be an
accepted form of communication;


 


(ii)                                   notify each other in writing of their electronic mail address and/or any
other information required to enable the sending and receipt of information by
that means; and


 


(iii)                                notify each other of any change to their address or any other such
information supplied by them.


 


(b)                           Any electronic communication made between the Agent and a Lender or the
Company will be effective only when actually received in readable form and in
the case of any electronic communication made by a Lender or the Company to the
Agent only if it is addressed in such a manner as the Agent shall specify for
this purpose.


 


42.6                  English
language


 


(a)                           Any notice given under or in connection with any Finance Document must
be in English.


 


(b)                           All other documents provided under or in connection with any Finance
Document must be:


 


(i)                                      in English; or


 


(ii)                                   if not in English, and if so required by the Agent, accompanied by a
certified English translation and, in this case, the English translation will
prevail unless the document is a constitutional, statutory or other official
document.


 


118

















 


43.                         Calculations
and certificates


 


43.1                  Accounts


 


In any litigation or arbitration proceedings
arising out of or in connection with a Finance Document, the entries made in
the accounts maintained by a Finance Party are prima facie evidence of the
matters to which they relate.


 


43.2                  Certificates
and Determinations


 


Any certification or determination by a Finance
Party of a rate or amount under any Finance Document is, in the absence of
manifest error, conclusive evidence of the matters to which it relates.


 


43.3                  Day count
convention


 


Any interest, commission or fee accruing under
a Finance Document will accrue from day to day and is calculated on the basis
of the actual number of days elapsed and a year of 360 days or, in any case
where the practice in the Relevant Interbank Market differs, in accordance with
that market practice.


 


44.                         Partial
invalidity


 


If, at any time, any provision of the Finance
Documents is or becomes illegal, invalid or unenforceable in any respect under
any law of any jurisdiction, neither the legality, validity or enforceability
of the remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way be
affected or impaired.


 


45.                         Remedies
and waivers


 


No failure to exercise, nor any delay in
exercising, on the part of any Finance Party, any right or remedy under the
Finance Documents shall operate as a waiver, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. 
The rights and remedies provided in this Agreement are cumulative and
not exclusive of any rights or remedies provided by law.


 


46.                         Amendments
and waivers


 


46.1                  Required
consents


 


(a)                           Subject to Clause 46.2 (Exceptions)
any term of the Finance Documents may be amended or waived only with the
consent of the Majority Lenders and the Obligors and any such amendment or
waiver will be binding on all Parties.


 


(b)                           The Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.


 


46.2                  Exceptions


 


(a)                           An amendment or waiver that has the effect of changing or which relates
to:


 


(i)                                      the definition of “Majority Lenders” in Clause 8.1 (Definitions);


 


(ii)                                   an extension to the date of payment of any amount under the Finance
Documents (other than an amount owing under Clause 18.5 (Mandatory
prepayment — Net Sale Proceeds) or Clause 18.7 (Mandatory
prepayment — Insurance Proceeds);


 


119

















 


(iii)                                a reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission payable;


 


(iv)                               an increase in or an extension of any Commitment;


 


(v)                                  a change to the Borrowers or Guarantors other than in accordance with
Clause 35 (Changes to the  Obligors);


 


(vi)                               any provision which expressly requires the consent of all the Lenders;


 


(vii)                            Clause 9.2 (Finance Parties’ rights
and obligations), Clause 11.3 (Change of Control),
Clause 34 (Changes to the Lenders),
Clause 39 (Sharing among the Finance Parties)
or this Clause 46; or


 


(viii)                         the
release of any Security created pursuant to any Security Document or of any
asset charged thereunder (except as provided in any Security Document or made
pursuant to a Permitted Disposal),


 


shall not be made without the prior consent of
all the Lenders.


 


(b)                           An amendment or waiver which relates to the rights or obligations of the
Agent, the Security Agent, the Issuing Bank, any Ancillary Lender or the
Arranger may not be effected without the consent of the Agent, the Security
Agent, the Issuing Bank, any Ancillary Lender or, as the case may be the
Arranger.


 


47.                         Counterparts


 


Each Finance Document may be executed in any
number of counterparts, and this has the same effect as if the signatures on
the counterparts were on a single copy of the Finance Document.


 


120

















 


SECTION 12


 


GOVERNING
LAW AND ENFORCEMENT


 


48.                         Governing
law


 


This Agreement is governed by English law.


 


49.                         Enforcement


 


49.1                  Jurisdiction


 


(a)                           The courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement) (a “Dispute”).


 


(b)                           The Parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes and accordingly no Party will argue to
the contrary.


 


(c)                            This Clause 49.1 is for the benefit of the Finance Parties only.  As a result, no Finance Party shall be
prevented from taking proceedings relating to a Dispute in any other courts
with jurisdiction.  To the extent allowed
by law, the Finance Parties may take concurrent proceedings in any number of
jurisdictions.


 


49.2                  Service
of process


 


Without prejudice to any other mode of service
allowed under any relevant law, each Obligor (other than an Obligor
incorporated in England and Wales):


 


(a)                                  irrevocably appoints Clifford Chance Secretaries
Limited at 10, Upper Bank Street, London E14 5JJ as its agent for service of
process in relation to any proceedings before the English courts in connection
with any Finance Document; and


 


(b)                                  agrees that failure by a process agent to notify the relevant Obligor of
the process will not invalidate the proceedings concerned.


 


This Agreement has been
entered into on the date stated at the beginning of this Agreement.


 


121

















 


SCHEDULE 4


 


THE ORIGINAL PARTIES


 


PART I


 


THE ORIGINAL OBLIGORS


 


	
  Name of Original Borrower

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  SACHTLEBEN CHEMIE GMBH

  	
   

  	
  HR B 1 96 69

  
	
   

  	
   

  	
   

  
	
  FINNISH HOLDCO

  	
   

  	
  2196924-0

  
	
   

  	
   

  	
   

  
	
  KEMIRA PIGMENTS OY

  	
   

  	
  0948159-2

  



 


	
  Name of Original Guarantor

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  SACHTLEBEN CHEMIE GMBH

  	
   

  	
  HR B 1 96 69

  
	
   

  	
   

  	
   

  
	
  FINNISH HOLDCO

  	
   

  	
  2196924-0

  
	
   

  	
   

  	
   

  
	
  KEMIRA PIGMENTS OY

  	
   

  	
  0948159-2

  



 


122

















 


PART II


 


THE ORIGINAL LENDERS


 


	
  Name of Original Lender

  	
   

  	
  Facility A Commitment

  (€)

  	
   

  	
  Facility B Commitment

  (€)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Skandinaviska Enskilda Banken AB (publ)

  	
   

  	
  150,000,000

  	
   

  	
  15,000,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Nordea Bank Finland Plc

  	
   

  	
  150,000,000

  	
   

  	
  15,000,000

  



 


123

















 


SCHEDULE 5


 


CONDITIONS PRECEDENT


 


PART I


 


CONDITIONS PRECEDENT TO INITIAL UTILISATION


 


1.                                Original Obligors


 


(a)                           A certified (beglaubigt)
copy of the constitutional documents (Satzung
or Gesellschaftsvertrag) of each Original Obligor incorporated in Germany.


 


(b)                           A certified copy of the constitutional documents of each Original
Obligor incorporated in Finland, being a copy of an extract from the Finnish
Trade Register and articles of association of recent date not dated earlier
than 14 days prior to the date of this Agreement.


 


(c)                            A certified (beglaubigt)
excerpt from the commercial register (Handelsregister)
of each Original Obligor incorporated in Germany of recent date not dated
earlier than 14 days prior to the date of this Agreement.


 


(d)                           A copy of a resolution of the shareholders of each Original Obligor
incorporated in Germany:


 


(i)                                      approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it execute the
Finance Documents to which it is a party; and


 


(ii)                                   instructing the managing director(s) of each
Original Obligor to execute the Finance Documents to which it is a party.


 


(e)                            A copy of a resolution of the board of directors of each Original
Obligor incorporated in a jurisdiction other than Germany:


 


(i)                                      approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it execute the
Finance Documents to which it is a Party;


 


(ii)                                   authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and


 


(iii)                                authorising a specified person or persons, on its behalf, to sign and/or
despatch all documents and notices (including, if relevant, any Utilisation
Request and Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents to which it is a party.


 


(f)                             A copy of a resolution signed by all the holders of the issued shares in
each Original Guarantor incorporated in a jurisdiction other than Germany,
approving the terms of, and the transactions contemplated by, the Finance
Documents to which that Original Guarantor is a party.


 


(g)                            A specimen of the signature of each person authorised by the resolutions
referred to in paragraphs (d) and (e) above.


 


124

















 


(h)                           A certificate of the Company (signed by a director) confirming that
borrowing or guaranteeing, as appropriate, the Total Commitments would not
cause any borrowing, guaranteeing or similar limit binding on any Original
Obligor to be exceeded.


 


(i)                               A certificate of an authorised signatory of the relevant Original
Obligor certifying that each copy document relating to it specified in this Part I
of Schedule 5 is correct, complete and in full force and effect as at a date no
earlier than the date of this Agreement.


 


2.                                Security


 


Confirmation from the Security Agent that it
has received each of the following documents in form and substance satisfactory
to it:


 


(a)                           A copy of each Security Document, duly executed by the parties to it;


 


(b)                           All documents and/or evidence of all other steps, required to perfect
those Security Documents (to the extent so required pursuant to the terms of
the relevant Security Document) as advised to the Security Agent by its legal
advisers in each relevant jurisdiction.


 


3.                                Subordination Agreement


 


A copy of the Subordination Agreement, duly
executed by the parties to it.


 


4.                                Legal opinions


 


(a)                           A legal opinion of Linklaters LLP, legal advisers to the Arranger and
the Agent in England and Germany substantially in the form distributed to the
Original Lenders prior to delivery.


 


(b)                           A legal opinion of Clifford Chance LLP, legal advisers to the Obligors
in Germany, on due incorporation and capacity of the Obligors, incorporated in
Germany, substantially in the form distributed to the Original Lenders prior to
delivery.


 


(c)                            A legal opinion of Hannes Snellman Attorneys at Law Ltd, legal advisers
to the Arranger and the Agent in Finland, substantially in the form distributed
to the Original Lenders prior to delivery.


 


5.                                Other documents and evidence


 


(a)                           Evidence that any process agent referred to in Clause 49.2 (Service of process) has accepted its
appointment.


 


(b)                           A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary (if it has notified the
Company accordingly) in connection with the entry into and performance of the
transactions contemplated by any Finance Document or for the validity and
enforceability of any Finance Document.


 


(c)                            The Original Financial Statements of each Original Obligor.


 


(d)                           Evidence that the fees, costs and expenses then due from the Company
pursuant to Clause 22 (Fees) and
Clause 27 (Costs and expenses)
have been paid or will be paid by the first Utilisation Date.


 


(e)                            Evidence that at the date of initial Utilisation, Kemira Oy owns 39% and
Rockwood Specialties Group GmbH owns 61% of the issued share capital of the
Company.


 


125

















 


(f)                             A copy of the Structuring Report.


 


(g)                            A copy of:


 


(i)                                      the KPMG Financial Due Diligence Report; and


 


(ii)                                   the PwC Financial Due Diligence Report,


 


together with all related reliance letters and
agreements.


 


(h)                           A copy of any Authorisation required by the Owners to enter into and
perform their obligations under the JV Documents.


 


(i)                               Evidence that the Kemira Guarantee has been released in full or will be
released in full prior to initial Utilisation of any Facility.


 


(j)                              Evidence that the Kemira Pledge has been released in full or will be
released in full prior to initial Utilisation of any Facility.


 


(k)                           A copy of each agreement documenting each Shareholder Loan or, where no
copy is available, a written confirmation from the relevant creditor of each
Shareholder Loan as to the outstanding principal amount of that Shareholder
Loan on the date of the first Utilisation Request.


 


(l)                               A copy of the Hedging Letter, duly executed by the parties to it.


 


(m)                       A
copy of the Base Case cash flow model.


 


(n)                           A copy of pro forma condensed consolidated financial statements of the
Company showing five year projections.


 


(o)                           The certificate referred to in paragraph (a)(i) of Clause 4.2 (Further conditions precedent).


 


(p)                           A list of Material Subsidiaries in existence at the date of initial
Utilisation.


 


(q)                           An executed copy of each JV Document.


 


(r)                              Evidence that all Existing Debt which is to be repaid on the date of
first Utilisation of Facility A will be repaid and cancelled in full on or
before the date of such Utilisation.


 


(s)                             A structure chart of the Group.


 


(t)                              A certificate of an authorised signatory of the Company certifying that
steps 1 -17 (except for the repayment of Existing Debt), as set out in the
section of the Structuring Report entitled “JV — Structure for Europe”, have
been completed in accordance with the Structuring Report.


 


(u)                           A copy of the KPMG Supplementary Report.


 


126
















 


PART II


 


CONDITIONS PRECEDENT REQUIRED TO BE

DELIVERED BY AN ADDITIONAL OBLIGOR


 


1.           An
Accession Letter, duly executed by the Additional Obligor and the Company.


 


2.           A
certified copy of the constitutional documents of the Additional Obligor
meaning, in respect of an Additional Obligor incorporated in Finland, a copy of
an extract from the Finnish Trade Register and articles of association of
recent date not dated earlier than 14 days prior to the date of its accession.


 


3.           If the Additional Obligor is incorporated in Germany, a certified excerpt from the commercial register of the Additional
Obligor of recent date not dated earlier than 14 days prior to the date of its
accession.


 


4.           If
customary and so required by the Agent, a copy of a resolution of the board of
directors of the Additional Obligor:


 


(a)             approving
the terms of, and the transactions contemplated by, the Accession Letter and
the Finance Documents and resolving that it execute the Accession Letter;


 


(b)             authorising
a specified person or persons to execute the Accession Letter on its behalf;
and


 


(c)             authorising
a specified person or persons, on its behalf, to sign and/or despatch all other
documents and notices (including, in relation to an Additional Borrower, any
Utilisation Request or Selection Notice) to be signed and/or despatched by it
under or in connection with the Finance Documents.


 


5.           A
specimen of the signature of each person authorised by the resolution referred
to in paragraph 4 above.


 


6.           If
the Additional Guarantor is incorporated in England and Wales, or if customary
and so required by the Agent, a copy of a resolution signed by all the holders
of the issued shares of the Additional Guarantor, approving the terms of, and
the transactions contemplated by, the Finance Documents to which the Additional
Guarantor is a party.


 


7.           A
certificate of the Additional Obligor (signed by a director) confirming that
borrowing or guaranteeing, as appropriate, the Total Commitments would not
cause any borrowing, guaranteeing or similar limit binding on it to be
exceeded.


 


8.           A
certificate of an authorised signatory of the Additional Obligor certifying
that each copy document listed in this Part II of Schedule 5 is correct,
complete and in full force and effect as at a date no earlier than the date of
the Accession Letter.


 


9.           A
copy of any other Authorisation or other document, opinion or assurance which
the Agent considers to be necessary or desirable in connection with the entry
into and performance of the transactions contemplated by the Accession Letter
or for the validity and enforceability of any Finance Document.


 


127

















 


10.         If
available, the latest unaudited financial statements of the Additional Obligor.


 


11.         A
legal opinion of Linklaters LLP, legal advisers to the Arranger and the Agent
in England.


 


12.         If
the Additional Obligor is incorporated in a jurisdiction other than England and
Wales, a legal opinion of the legal advisers to the Arranger and the Agent in
the jurisdiction in which the Additional Obligor is incorporated.


 


13.         If
the proposed Additional Obligor is incorporated in a jurisdiction other than
England and Wales, evidence that the process agent specified in Clause 49.2 (Service of process), if not an Obligor,
has accepted its appointment in relation to the proposed Additional Obligor.


 


14.         Supplemental
Security Documents granting security over all material assets of the Additional
Obligor, duly executed by the Additional Obligor together with such other
documents relating to the security granted pursuant to such supplemental
Security Documents as the Security Agent may require.


 


128

















 


SCHEDULE 6


 


REQUESTS


 


PART I




UTILISATION REQUEST


 


From:      [Name of relevant Borrower]


 


To:          Merchant Banking, Skandinaviska Enskilda Banken AB (publ)


 


Dated:


 


Dear Sirs


 


Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH


- €330,000,000 Facility Agreement

dated 17 June 2008 (the “Agreement”)


 


1.           We
refer to the Agreement. This is a Utilisation Request. Terms defined in the
Agreement have the same meaning in this Utilisation Request unless given a
different meaning in this Utilisation Request.


 


2.           We
wish to borrow a Loan on the following terms:


 


	
  Proposed Utilisation Date:

  	
   

  	
  [                   ]
  or, if that is not a Business Day, the next Business Day)

  
	
   

  	
   

  	
   

  
	
  Facility to be utilised:

  	
   

  	
  [Facility A]/[Facility B]*

  
	
   

  	
   

  	
   

  
	
  Currency of Loan:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  Amount:

  	
   

  	
  [                   ]
  or, if less, the Available Facility

  
	
   

  	
   

  	
   

  
	
  Interest Period:

  	
   

  	
  [                   ]

  



 


3.           We
confirm that each condition specified in Clause 11.2 (Further conditions precedent) is satisfied
on the date of this Utilisation Request (to the extent required to be satisfied
pursuant to that Clause).


 


4.           The
proceeds of this Loan should be credited to [account].


 


5.           This
Utilisation Request is irrevocable.


 


	
  Yours faithfully

  
	
   

  
	
   

  	
   

  



 


Name and title:


 


authorised signatory for


 


[name of relevant Borrower]


 






*    Delete as appropriate


 


129

















 


PART II


 


SELECTION NOTICE




APPLICABLE TO A FACILITY A LOAN


 


From:      [Name of relevant Borrower]


 


To:          Merchant Banking, Skandinaviska Enskilda Banken AB (publ)


 


Dated:


 


Dear Sirs


 


Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 Facility Agreement

dated 17 June 2008  (the “Agreement”)


 


1.           We
refer to the Agreement. This is a Selection Notice. Terms defined in the
Agreement have the same meaning in this Selection Notice unless given a
different meaning in this Selection Notice.


 


2.           We
refer to the following Facility A Loan[s] in [identify
currency] with an Interest Period ending on
[                   ].*


 


3.           We
request that the above Facility A Loan[s] be divided into
[                   ]
Facility A Loans with the following Base Currency Amounts and Interest Periods:**


 


or


 


We request that the next Interest Period for
the above Facility A Loan[s] is
[                   ].***


 


4.           This
Selection Notice is irrevocable.


 


	
  Yours faithfully

  
	
   

  
	
   

  	
   

  



 


Name and title:


 


authorised signatory for


 


the Company on behalf of

[Name of relevant Borrower]


 






	
  *

  	
   

  	
  Insert details of all  Facility A Loans in the same currency which have an
  Interest Period ending on the same date.

  
	
   

  	
   

  	
   

  
	
  **

  	
   

  	
  Use this option if division of Loans is
  requested.

  
	
   

  	
   

  	
   

  
	
  ***

  	
   

  	
  Use this option if sub-division is not
  required.

  



 


130

















 


PART III


 


UTILISATION REQUEST




LETTERS OF CREDIT AND BANK GUARANTEES


 


From:      [Name of relevant Borrower]


 


To:          Merchant Banking, Skandinaviska Enskilda Banken AB (publ)


 


Dated:


 


Dear Sirs


 


Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 Facility Agreement

dated 17 June 2008 (the “Agreement”)


 


1.           We
wish to arrange for a [Letter of Credit/Bank Guarantee] to be issued by the
Issuing Bank on the following terms:


 


	
  Proposed Utilisation Date:

  	
   

  	
  [                   ]
  (or, if that is not a Business Day, the next Business Day)

  
	
   

  	
   

  	
   

  
	
  Facility to be utilised:

  	
   

  	
  Facility B

  
	
   

  	
   

  	
   

  
	
  Amount:

  	
   

  	
  [                   ]
  or, if less, the Available Facility

  
	
   

  	
   

  	
   

  
	
  Beneficiary:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  Term or Expiry Date:

  	
   

  	
  [                   ]

  



 


2.           We
confirm that each condition specified in Clause 13.6 (Issue of Letters of Credit or Bank Guarantees)
is satisfied on the date of this Utilisation Request.


 


3.           We
attach a copy of the proposed [Letter of Credit/Bank Guarantee]


 


4.           This
Utilisation Request is irrevocable.


 


Delivery Instructions:


 


[specify
delivery instructions]


 


	
  Yours faithfully

  
	
   

  
	
   

  	
   

  



 


Name and title:


 


authorised signatory for


 


the Company on behalf of

[Name of relevant Borrower]


 


131

















 


PART IV




ANCILLARY FACILITY REQUEST


 


	
  From:

  	
   

  	
  [Company]

  
	
   

  	
   

  	
   

  
	
  To:

  	
   

  	
  Merchant Banking, Skandinaviska Enskilda Banken AB (publ)

  



 


Dated:


 


Dear Sirs


 


Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 Facility Agreement

dated 17 June 2008  (the “Agreement”)


 


1.           We refer to the Agreement. This is an Ancillary Facility Request. Terms
defined in the Agreement have the same meaning in this Ancillary Facility
Request unless given a different meaning in this Ancillary Facility Request.


 


2.           We wish to establish an Ancillary Facility on the following terms:


 


	
  Proposed Borrower:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  Proposed Ancillary Lender:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  Type or types of facility:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  Commencement Date:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  Expiry date:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  Ancillary Commitment amount:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  Currency/ies available:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  [Other details required by the Agent:]

  	
   

  	
  [                   ]

  



 


3.           We confirm that each condition specified in paragraphs (a) and (b) of
Clause 9.4 (Grant of Ancillary Facility)
is satisfied on the date of this Ancillary Facility Request.


 


4.           This Ancillary Facility Request is irrevocable.


 


	
  Yours faithfully

  
	
   

  
	
   

  	
   

  



 


Name and title:


 


authorised signatory for

[Company]


 


132

















 


SCHEDULE 7


 


MANDATORY COST FORMULAE


 


1.           The
Mandatory Cost is an addition to the interest rate to compensate Lenders for
the cost of compliance with (a) the requirements of the Bank of England
and/or the Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.


 


2.           On
the first day of each Interest Period (or as soon as possible thereafter) the
Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Lender, in
accordance with the paragraphs set out below. 
The Mandatory Cost will be calculated by the Agent as a weighted average
of the Lenders’ Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed as a
percentage rate per annum.


 


3.           The
Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender to
the Agent. This percentage will be certified by that Lender in its notice to
the Agent to be its reasonable determination of the cost (expressed as a
percentage of that Lender’s participation in all Loans made from that Facility
Office) of complying with the minimum reserve requirements of the European
Central Bank in respect of loans made from that Facility Office.


 


4.           The Additional Cost Rate for
any Lender lending from a Facility Office in the United Kingdom will be calculated
by the Agent as follows:


 


(a)            in relation to a sterling
Loan:


 


	
  

  	
  per cent. per annum

  



 


(b)           in relation to a Loan in any
currency other than sterling:


 


	
  

  	
  per cent. per annum.

  



 


Where:


 


A             is the percentage of Eligible Liabilities (assuming
these to be in excess of any stated minimum) which that Lender is from time to
time required to maintain as an interest free cash ratio deposit with the Bank
of England to comply with cash ratio requirements.


 


B             is the percentage rate of interest (excluding the
Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional
rate of interest specified in paragraph (a) of Clause 19.3 (Default interest)) payable for the
relevant Interest Period on the Loan.


 


C             is the percentage (if any) of Eligible Liabilities
which that Lender is required from time to time to maintain as interest bearing
Special Deposits with the Bank of England.


 


D             is the percentage rate per annum payable by the Bank
of England to the Agent on interest bearing Special Deposits.


 


133

















 


E              is designed to compensate Lenders for amounts payable
under the Fees Rules and is calculated by the Agent as being the average
of the most recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in pounds per £1,000,000.


 


5.           For
the purposes of this Schedule:


 


(a)         “Eligible Liabilities” and “Special Deposits” have the meanings given
to them from time to time under or pursuant to the Bank of England Act 1998 or
(as may be appropriate) by the Bank of England;


 


(b)         “Fees Rules” means the rules on
periodic fees contained in the FSA Supervision Manual or such other law or
regulation as may be in force from time to time in respect of the payment of
fees for the acceptance of deposits;


 


(c)         “Fee Tariffs” means the fee tariffs
specified in the Fees Rules under the activity group A.1 Deposit acceptors
(ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but
taking into account any applicable discount rate); and


 


(d)         “Tariff Base” has the meaning given to it
in, and will be calculated in accordance with, the Fees Rules.


 


6.           In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula as 5
and not as 0.05).  A negative result
obtained by subtracting D from B shall be taken as zero.  The resulting figures shall be rounded to
four decimal places.


 


7.           If
requested by the Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Agent, the rate
of charge payable by that Reference Bank to the Financial Services Authority
pursuant to the Fees Rules in respect of the relevant financial year of
the Financial Services Authority (calculated for this purpose by that Reference
Bank as being the average of the Fee Tariffs applicable to that Reference Bank
for that financial year) and expressed in pounds per £1,000,000 of the Tariff
Base of that Reference Bank.


 


8.           Each
Lender shall supply any information required by the Agent for the purpose of
calculating its Additional Cost Rate.  In
particular, but without limitation, each Lender shall supply the following
information on or prior to the date on which it becomes a Lender:


 


(a)            the
jurisdiction of its Facility Office; and


 


(b)           any
other information that the Agent may reasonably require for such purpose.


 


Each Lender shall promptly notify the Agent of
any change to the information provided by it pursuant to this paragraph.


 


9.           The
percentages of each Lender for the purpose of A and C above and the rates of
charge of each Reference Bank for the purpose of E above shall be determined by
the Agent based upon the information supplied to it pursuant to paragraphs 7
and 8 above and on the assumption that, unless a Lender notifies the Agent to
the contrary, each Lender’s obligations in relation to cash 


 


134

















 


ratio
deposits and Special Deposits are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same jurisdiction
as its Facility Office.


 


10.         The
Agent shall have no liability to any person if such determination results in an
Additional Cost Rate which over or under compensates any Lender and shall be
entitled to assume that the information provided by any Lender or Reference
Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in all
respects.


 


11.         The
Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each
Lender based on the information provided by each Lender and each Reference Bank
pursuant to paragraphs 3, 7 and 8 above.


 


12.         Any
determination by the Agent pursuant to this Schedule in relation to a formula,
the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender
shall, in the absence of manifest error, be conclusive and binding on all
Parties.


 


13.         The
Agent may from time to time, after consultation with the Company and the
Lenders, determine and notify to all Parties any amendments which are required
to be made to this Schedule in order to comply with any change in law,
regulation or any requirements from time to time imposed by the Bank of
England, the Financial Services Authority or the European Central Bank (or, in
any case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be conclusive
and binding on all Parties.


 


135

















 


SCHEDULE 8


 


FORM OF TRANSFER CERTIFICATE


 


To:          Merchant Banking, Skandinaviska Enskilda Banken AB (publ) as Agent


 


From:      [                   ]
(the “Existing Lender”) and
[                   ]
(the “New Lender”)


 


Dated:


 


Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 Facility Agreement

dated 17 June 2008 (the “Agreement”)


 


1.           We
refer to the Agreement. This is a Transfer Certificate. Terms defined in the
Agreement have the same meaning in this Transfer Certificate unless given a
different meaning in this Transfer Certificate.


 


2.           We
refer to Clause 34.5 (Procedure for transfer):


 


(a)            The
Existing Lender and the New Lender agree to the Existing Lender transferring to
the New Lender by novation all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the Schedule in accordance with Clause 34.5
(Procedure for transfer).


 


(b)           The
proposed Transfer Date is
[                   ].


 


(c)            The
Facility Office and address, fax number and attention details for notices of
the New Lender for the purposes of Clause 42.2 (Addresses) are set out in the Schedule.


 


3.           The
New Lender expressly acknowledges the limitations on the Existing Lender’s
obligations set out in paragraph (c) of Clause 34.4 (Limitation of responsibility of Existing Lenders).


 


4.           This
Transfer Certificate may be executed in any number of counterparts and this has
the same effect as if the signatures on the counterparts were on a single copy
of this Transfer Certificate.


 


5.           This
Transfer Certificate is governed by English law.


 


136
















 


THE
SCHEDULE




Commitment/rights
and obligations to be transferred


 


[insert relevant details]


 


[Facility Office address, fax number and
attention details for notices and account details for payments.]


 


 


	
  [Existing Lender]

  	
  [New Lender ]

  
	
   

  	
   

  
	
  By:

  	
  By:

  



 


 


This Transfer Certificate is accepted by the
Agent and the Transfer Date is confirmed as [                   ].


 


Merchant Banking, Skandinaviska Enskilda Banken AB
(publ)


 


By:


 


137

















 


SCHEDULE 9


 


FORM OF ACCESSION LETTER


 


To:          Merchant Banking, Skandinaviska Enskilda Banken AB (publ) as Agent


 


From:      [Subsidiary]
and Deukalion Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH


 


Dated:


 


Dear Sirs


 


Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 Facility Agreement

dated 17 June 2008 (the “Agreement”)


 


1.           We
refer to the Agreement. This is an Accession Letter. Terms defined in the
Agreement have the same meaning in this Accession Letter unless given a
different meaning in this Accession Letter.


 


2.           [Subsidiary]
agrees to become an Additional [Borrower]/[Guarantor] and to be bound by the
terms of the Agreement as an Additional [Borrower]/[Guarantor] pursuant to
[Clause 35.2 (Additional Borrowers)]/[Clause
35.4 (Additional Guarantors)] of
the Agreement.  [Subsidiary] is a company
duly incorporated under the laws of [name of relevant
jurisdiction].


 


3.           [Subsidiary’s]
administrative details are as follows:


 


Address:


 


Fax No:


 


Attention:


 


4.           This
Accession Letter is governed by English law.


 


This Guarantor Accession Letter has been
delivered as a deed on the date stated at the beginning of this Guarantor
Accession Letter.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name and title:

  	
   

  	
  Name and title:

  



 


Deukalion Einhundertvierundzwanzigste 


	
  Vermögensverwaltungs - GmbH

  	
   

  	
  [Subsidiary]

  



 


138

















 


SCHEDULE 10


 


SECURITY AGENCY PROVISIONS


 


1.           Definitions


 


In this Schedule:


 


“Security
Property” means all right, title and interest in, to and under any
Security Document, including:


 


(a)            the
assets expressed to be subject to the Security created pursuant to any Security
Document;


 


(b)           the
benefit of the undertakings in any Security Document; and


 


(c)            all
sums received or recovered by the Security Agent pursuant to any Security
Document and any assets representing the same.


 


2.           Declaration of trust


 


(a)         The
Security Agent and each other Finance Party agree that the Security Agent shall
hold the Security Property in trust for the benefit of the Finance Parties on
the terms of the Finance Documents.


 


(b)         Subject
to paragraph (c) below, paragraph (a) above shall not apply to any
Security Document which is expressed to be or is construed to be governed by
any law other than English law or any other law from time to time designated by
the Security Agent and an Obligor or any Security Property arising under any
such Security Document.


 


(c)         Paragraph
(b) above shall not affect or limit paragraph (d) of Clause 37 (Parallel Debt) nor the applicability of the provisions of
this Schedule with respect to any Security Document which is expressed to be or
is construed to be governed by any law other than English law or any other law
from time to time designated by the Security Agent and an Obligor or any
Security Property arising under any such Security Document.


 


3.           Defects in Security


 


The Security Agent shall not be liable for any
failure or omission to perfect, or defect in perfecting, the Security created
pursuant to any Security Document, including:


 


(a)            failure
to obtain any Authorisation for the execution, validity, enforceability or
admissibility in evidence of any Security Document; or


 


(b)           failure
to effect or procure registration of or otherwise protect or perfect any of the
Security created by the Security Documents under any laws in any territory.


 


4.           No enquiry


 


The Security Agent may accept without enquiry,
requisition, objection or investigation such title as any Obligor may have to
any assets expressed to be subject to the Security created pursuant to any
Security Document.


 


139

















 


5.           Retention of documents


 


The Security Agent may hold title deeds and
other documents relating to any of the assets expressed to be subject to the
Security created pursuant to any Security Document in such manner as it sees
fit (including allowing any Obligor to retain them).


 


6.           Indemnity out of Security Property


 


The Security Agent and every receiver,
delegate, attorney, agent or other similar person appointed under any Security
Document may indemnify itself out of the Security Property against any cost,
loss or liability incurred by it in that capacity (otherwise than by reason of
its own gross negligence or wilful misconduct).


 


7.           Basis of distribution


 


To enable it to make any distribution, the
Security Agent may fix a date as at which the amount of the Liabilities is to
be calculated and may require, and rely on, a certificate from any Finance
Party giving details of:


 


(a)            any
sums due or owing to any Finance Party as at that date; and


 


(b)           such
other matters as it thinks fit.


 


8.           Rights of Security Agent


 


The Security Agent shall have all the rights,
privileges and immunities which gratuitous trustees have or may have in
England, even though it is entitled to remuneration.


 


9.           No duty to collect payments


 


The Security Agent shall not have any duty:


 


(a)            to
ensure that any payment or other financial benefit in respect of any of the
assets expressed to be subject to the Security created pursuant to any Security
Document is duly and punctually paid, received or collected; or


 


(b)           to
ensure the taking up of any (or any offer of any) stocks, shares, rights,
moneys or other property accruing or offered at any time by way of interest,
dividend, redemption, bonus, rights, preference, option, warrant or otherwise
in respect of any of the assets expressed to be subject to the Security created
pursuant to any Security Document.


 


10.         Perpetuity period


 


The perpetuity period for the trusts created by
the Finance Documents shall be 80 years from the date of this Agreement.


 


140

















 


11.         Appropriation


 


(a)         Each
Party irrevocably waives any right to appropriate any payment to, or other sum
received, recovered or held by, the Security Agent in or towards payment of any
particular part of the Liabilities and agrees that the Security Agent shall
have the exclusive right to do so.


 


(b)         Paragraph
(a) above will override any application made or purported to be made by
any other person.


 


12.         Investments


 


All money received or held by the Security
Agent under the Finance Documents may, in the name of, or under the control of,
the Security Agent:


 


(a)            be
invested in any investment it may select; or


 


(b)           be
deposited at such bank or institution (including itself, any other Finance
Party or any Affiliate of any Finance Party) as it thinks fit.


 


13.         Suspense  account


 


Subject to paragraph 14 (Timing of  Distributions)
below the Security Agent may:


 


(a)            hold
in an interest bearing suspense account any money received by it from any
Obligor; and


 


(b)           invest
an amount equal to the balance from time to time standing to the credit of that
suspense account in any of the investments authorised by paragraph 12 (Investments) above.


 


14.         Timing  of  Distributions


 


Distributions by the Security Agent shall be
made as and when determined by it.


 


15.         Order of application


 


Subject to the rights of creditors mandatorily
preferred by law applying to companies generally, the proceeds of enforcement
of the Security conferred by the Security Documents, all recoveries by the
Security Agent under guarantees and all other amounts paid to the Security
Agent pursuant to this Agreement shall be applied in the following order:


 


(a)            first, in
or towards payment of any unpaid fees, costs, expenses and liabilities
(including any interest thereon as provided in the Security Documents) incurred
by or on behalf of the Security Agent (or any adviser, receiver, delegate,
attorney or agent) and the remuneration of the Security Agent (or any adviser,
receiver, delegate, attorney or agent) in connection with carrying out its
duties or exercising powers or discretions under the Security Documents or this
Agreement;


 


(b)           second, in
or towards payment to the Agent for application towards any unpaid costs and
expenses incurred by or on behalf of any Finance Party in connection with such
enforcement, recovery or other payment pari passu between themselves;


 


141

















 


(c)            third, in
or towards payment to the Agent for application towards the balance of the
Loans and any other Unpaid Sum;


 


(d)           fourth, in
payment of the surplus (if any) to the relevant Obligor or other person
entitled to it.


 


16.         Delegation


 


(a)         The
Security Agent may:


 


(i)             employ
and pay an agent selected by it to transact or conduct any business and to do
all acts required to be done by it (including the receipt and payment of
money);


 


(ii)            delegate
to any person on any terms (including power to sub-delegate) all or any of its
functions; and


 


(iii)           with
the prior consent of the Majority Lenders, appoint, on such terms as it may
determine, or remove, any person to act either as separate or joint security
agent with those rights and obligations vested in the Security Agent by this
Agreement or any Security Document.


 


(b)         The
Security Agent will not be:


 


(i)             responsible
to anyone for any misconduct or omission by any agent, person or security agent
appointed by it pursuant to paragraph (a) above; or


 


(ii)            bound
to supervise the proceedings or acts of any such agent, person or security
agent,


 


provided that it exercises reasonable care in
selecting that agent, person or security agent.


 


17.         Unwinding


 


Any appropriation or distribution which later
transpires to have been or is agreed by the Security Agent to have been invalid
or which has to be refunded shall be refunded and shall be deemed never to have
been made.


 


18.         Disapplication


 


Section 1 of the Trustee Act 2000 shall not
apply to the duties and powers of the Security Agent in relation to the trusts
constituted by any Finance Document save to the extent required by law.  Where there are inconsistencies between the
Trustee Act 1925 and the Trustee Act 2000 and the express provisions of any
such Finance Document, the provisions of such Finance Document shall, to the
extent allowed by law, prevail and, in the case of any such inconsistency with
the Trustee Act 2000, the provisions of such Finance Document shall constitute
a restriction or exclusion for the purposes of that Act.


 


19.         Lenders


 


The Security Agent shall be entitled to assume
that each Lender is a Lender unless notified by the Agent to the contrary.


 


142

















 


20.         Release
of Security and guarantees


 


If, pursuant to or for the purpose of any
disposal permitted under the Finance Documents, the Security Agent requires any
release of any guarantee or Security granted by any Obligor, each Party shall
promptly enter into any release and/or other document and take any action which
the Security Agent may reasonably require.


 


21.         Authority
of Security Agent


 


(a)         If,
in connection with any disposal permitted under the Finance Documents, an
Obligor sells or otherwise disposes of (or proposes to sell or otherwise
dispose of) any asset, the Security Agent may, and is hereby irrevocably
authorised on behalf of each Party to:


 


(A)         release
the Security created pursuant to the Security Documents over the relevant
asset;


 


(B)          if
the relevant asset comprises all of the shares in the capital of an Obligor,
release that Obligor and any of its Subsidiaries form all its or their past,
present and future liabilities and/or obligations (both actual and contingent)
as an Obligor in accordance with Clauses 27.3 (Assignment
or transfer fee) and/or 27.5 (Procedure for transfer).


 


(b)         Each
Party shall promptly enter into any release and/or other document and take any
action which the Security Agent may reasonably require to give effect to
paragraph (a) above.


 


143

















 


SCHEDULE 11


 


FORM OF COMPLIANCE CERTIFICATE


 


To:                          Merchant Banking, Skandinaviska Enskilda Banken AB
(publ) as Agent


 


From:                      Deukalion Einhundertvierundzwanzigste
Vermögensverwaltungs - GmbH


 


Dated:


 


Dear Sirs


 


Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH  - €330,000,000
Facility Agreement

dated 17 June 2008 (the “Agreement”)


 


We refer to the Agreement. This is a Compliance
Certificate. Terms defined in the Agreement have the same meaning when used in
this Compliance Certificate unless given a different meaning in this Compliance
Certificate.


 


1.           [We
confirm that no Default is continuing.]*


 


2.           We
confirm that:


 


[                   ]


 


3.           We
set out (in reasonable detail) below computations as to the ratios appearing in
paragraph 2 above.


 


[                   ]


 


	
  Signed:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  
	
  Name and title:

  	
   

  	
  Name and title:

  
	
   

  	
   

  	
   

  
	
  Director of 

  	
   

  	
  Director of

  
	
   

  	
   

  	
   

  
	
  Deukalion Einhundertvierundzwanzigste
  Vermögensverwaltungs - GmbH

  	
   

  	
  Deukalion Einhundertvierundzwanzigste
  Vermögensverwaltungs - GmbH

  



 


* insert applicable certification
language


 


We have reviewed the Facility Agreement and
audited consolidated financial statements of [Sachtleben] for the year ended
[                   ].


 


On the basis of that review and audit, nothing
has come to our attention which would require any modification to the
confirmations in paragraph 2 of the above Compliance Certificate [or which we
know to be a continuing Default].


 


	
   

  	
   

  	
   

  



 


for and on behalf of Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH


 






*    If this statement
cannot be made, the certificate should identify any Default that is continuing
and the steps, if any, being taken to remedy it.


 


144

















 


name of auditors of Deukalion Einhundertvierundzwanzigste
Vermögensverwaltungs — GmbH


 


145
















 


SCHEDULE 12

EXISTING
SECURITY


PART I

EXISTING
SECURITY


 


	
   

  	
   

  	
   

  	
   

  	
  Real estate code

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  System nr.

  	
   

  	
  Real estate

  	
   

  	
  From

  	
   

  	
  To

  	
   

  	
  Beneficiary

  	
   

  	
  CCY

  	
   

  	
  Amount

  	
   

  
	
  400265

  	
   

  	
  Pori, Kaanaankorpi 67
  Kr. 1 To

  	
   

  	
  3160

  	
   

  	
  3160

  	
   

  	
  Kemira Pigments Oy’s
  Eläkesäätiö

  	
   

  	
  EUR

  	
   

  	
  168
  100,00

  	
   

  
	
  400285

  	
   

  	
  Pori, Kaanaankorpi 67
  Kr. 1 To

  	
   

  	
  3259

  	
   

  	
  3273

  	
   

  	
  Kemira Pigments Oy’s
  Eläkesäätiö

  	
   

  	
  EUR

  	
   

  	
  12
  613 500,00

  	
   

  
	
  400258

  	
   

  	
  Pori, Kaanaankorpi 67
  Kr. 1 To

  	
   

  	
  3144

  	
   

  	
  3145

  	
   

  	
  Kemira Pigments Oy’s
  Eläkesäätiö

  	
   

  	
  EUR

  	
   

  	
  336
  200,00

  	
   

  
	
  400256

  	
   

  	
  Pori, Kaanaankorpi 67
  Kr. 1 To

  	
   

  	
  3139

  	
   

  	
  3140

  	
   

  	
  Kemira Pigments Oy’s
  Eläkesäätiö

  	
   

  	
  EUR

  	
   

  	
  336
  200,00

  	
   

  
	
  400255

  	
   

  	
  Pori, Kaanaankorpi 67
  Kr. 1 To

  	
   

  	
  3129

  	
   

  	
  3133

  	
   

  	
  Kemira Pigments Oy’s
  Eläkesäätiö

  	
   

  	
  EUR

  	
   

  	
  840
  500,00

  	
   

  
	
  400254

  	
   

  	
  Pori, Kaanaankorpi 67
  Kr. 1 To

  	
   

  	
  3126

  	
   

  	
  3127

  	
   

  	
  Kemira Pigments Oy’s
  Eläkesäätiö

  	
   

  	
  EUR

  	
   

  	
  336
  200,00

  	
   

  
	
  400251

  	
   

  	
  Pori, Kaanaankorpi 67
  Kr. 1 To

  	
   

  	
  3162

  	
   

  	
  3162

  	
   

  	
  Kemira Pigments Oy’s
  Eläkesäätiö

  	
   

  	
  EUR

  	
   

  	
  33
  600,00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  EUR

  	
   

  	
  14 664 300,00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Real estate code

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  System nr.

  	
   

  	
  Real estate

  	
   

  	
  From

  	
   

  	
  To

  	
   

  	
  Beneficiary

  	
   

  	
  CCY

  	
   

  	
  Amount

  	
   

  
	
  400263

  	
   

  	
  Pori,
  Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3203

  	
   

  	
  3203

  	
   

  	
  Pori Sicness Fund

  	
   

  	
  EUR

  	
   

  	
  336
  300,00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  EUR

  	
   

  	
  336 300,00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Real estate code

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  System nr.

  	
   

  	
  Real estate

  	
   

  	
  From

  	
   

  	
  To

  	
   

  	
  Beneficiary

  	
   

  	
  CCY

  	
   

  	
  Amount

  	
   

  
	
  400377

  	
   

  	
  Pori, Kaanaankorpi 67
  Kr. 1 to

  	
   

  	
  3835

  	
   

  	
  3841

  	
   

  	
  Tullihallitus

  	
   

  	
  EUR

  	
   

  	
  117
  600,00

  	
   

  
	
  400378

  	
   

  	
  Pori, Vuori-Yyteri
  R.no1:328 (

  	
   

  	
  3819

  	
   

  	
  3829

  	
   

  	
  Tullihallitus

  	
   

  	
  EUR

  	
   

  	
  184
  800,00

  	
   

  
	
  400379

  	
   

  	
  Pori, Vuori-Yyteri
  R.no1:328 (

  	
   

  	
  3833

  	
   

  	
  3834

  	
   

  	
  Tullihallitus

  	
   

  	
  EUR

  	
   

  	
  33
  600,00

  	
   

  
	
  400380

  	
   

  	
  Pori, Vuori-Yyteri
  R.no1:328 (

  	
   

  	
  3842

  	
   

  	
  3842

  	
   

  	
  Tullihallitus

  	
   

  	
  EUR

  	
   

  	
  16
  800,00

  	
   

  
	
  400381

  	
   

  	
  Pori, Vuori-Yyteri
  R.no1:328 (

  	
   

  	
  3843

  	
   

  	
  3855

  	
   

  	
  Tullihallitus

  	
   

  	
  EUR

  	
   

  	
  218
  400,00

  	
   

  
	
  400382

  	
   

  	
  Pori, Vuori-Yyteri
  R.no1:328 (

  	
   

  	
  3858

  	
   

  	
  3862

  	
   

  	
  Tullihallitus

  	
   

  	
  EUR

  	
   

  	
  84
  000,00

  	
   

  
	
  400384

  	
   

  	
  Pori, Vuori-Yyteri
  R.no1:328 (

  	
   

  	
  3864

  	
   

  	
  3878

  	
   

  	
  Tullihallitus

  	
   

  	
  EUR

  	
   

  	
  252
  000,00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  EUR

  	
   

  	
  907 200,00

  	
   

  



 


146

















 


PART II

KEMIRA PLEDGE


 


	
   

  	
   

  	
   

  	
   

  	
  Real estate code

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  System nr.

  	
   

  	
  Real estate

  	
   

  	
  From

  	
   

  	
  To

  	
   

  	
  Beneficiary

  	
   

  	
  CCY

  	
   

  	
  Amount

  	
   

  
	
  400234

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3153

  	
   

  	
  3153

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400239

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3189

  	
   

  	
  3189

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.500,00

  	
   

  
	
  400238

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3185

  	
   

  	
  3185

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400237

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3181

  	
   

  	
  3181

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400235

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3154

  	
   

  	
  3154

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400245

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3149

  	
   

  	
  3149

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400246

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3150

  	
   

  	
  3150

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400247

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3155

  	
   

  	
  3155

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400248

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3156

  	
   

  	
  3156

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  16.800,00

  	
   

  
	
  400268

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3168

  	
   

  	
  3169

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  336.200,00

  	
   

  
	
  400267

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3163

  	
   

  	
  3166

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  672.400,00

  	
   

  
	
  400266

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3161

  	
   

  	
  3161

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  168.100,00

  	
   

  
	
  400264

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3204

  	
   

  	
  3207

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  1.345.200,00

  	
   

  
	
  400244

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3143

  	
   

  	
  3143

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400243

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3138

  	
   

  	
  3138

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400242

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3128

  	
   

  	
  3128

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400241

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3193

  	
   

  	
  3193

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400240

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3190

  	
   

  	
  3190

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400228

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3148

  	
   

  	
  3148

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400229

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3151

  	
   

  	
  3151

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400230

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3159

  	
   

  	
  3159

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400231

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3167

  	
   

  	
  3167

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400232

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3179

  	
   

  	
  3179

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400233

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3152

  	
   

  	
  3152

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400250

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3158

  	
   

  	
  3158

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  16.800,00

  	
   

  
	
  400252

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3209

  	
   

  	
  3209

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400253

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3124

  	
   

  	
  3125

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  336.200,00

  	
   

  
	
  400281

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3212

  	
   

  	
  3214

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  2.522.700,00

  	
   

  
	
  400282

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3217

  	
   

  	
  3218

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  1.681.800,00

  	
   

  
	
  400283

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3221

  	
   

  	
  3223

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  2.522.700,00

  	
   

  
	
  400284

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3225

  	
   

  	
  3229

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  4.204.500,00

  	
   

  
	
  400257

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3135

  	
   

  	
  3136

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  336.200,00

  	
   

  
	
  400236

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 to

  	
   

  	
  3174

  	
   

  	
  3174

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  185.000,00

  	
   

  
	
  400259

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3137

  	
   

  	
  3137

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  168.100,00

  	
   

  
	
  400260

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3141

  	
   

  	
  3142

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  336.200,00

  	
   

  
	
  400261

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3146

  	
   

  	
  3147

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  336.200,00

  	
   

  
	
  400262

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3197

  	
   

  	
  3202

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  5.045.400,00

  	
   

  
	
  400276

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3191

  	
   

  	
  3191

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  168.100,00

  	
   

  
	
  400275

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3188

  	
   

  	
  3188

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  168.100,00

  	
   

  
	
  400274

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3187

  	
   

  	
  3187

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  168.100,00

  	
   

  
	
  400273

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3184

  	
   

  	
  3184

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  168.100,00

  	
   

  
	
  400272

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3178

  	
   

  	
  3178

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  168.100,00

  	
   

  
	
  400271

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3175

  	
   

  	
  3176

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  336.200,00

  	
   

  
	
  400269

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3170

  	
   

  	
  3171

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  336.200,00

  	
   

  
	
  400270

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3173

  	
   

  	
  3173

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  168.100,00

  	
   

  
	
  400280

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3210

  	
   

  	
  3210

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  840.900,00

  	
   

  
	
  400277

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3194

  	
   

  	
  3194

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  168.100,00

  	
   

  
	
  400278

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3208

  	
   

  	
  3208

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  168.100,00

  	
   

  
	
  400279

  	
   

  	
  Pori, Kaanaankorpi 67 Kr. 1 To

  	
   

  	
  3195

  	
   

  	
  3195

  	
   

  	
  Neliapila Pension Fund

  	
   

  	
  EUR

  	
   

  	
  840.900,00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  EUR

  	
   

  	
  27.630.000,00

  	
   

  



 


147

















 


SCHEDULE 13


TIMETABLES


PART I

LOANS


 


“D -   ”
refers to the number of Business Days before the relevant Utilisation Date/the
first day of the relevant Interest Period.


 


	
   

  	
   

  	
  Loans in euro

  	
   

  	
  Loans in sterling

  	
   

  	
  Loans in other

  currencies

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Request for approval as an Optional Currency,
  if required (Clause 11.3 (Conditions
  relating to Optional Currencies))

  	
   

  	
   

  	
   

  	
  D - 3

  10:00 a.m.

  	
   

  	
  D - 5

  10:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent notifies the Lenders of the request
  (Clause 11.3 (Conditions relating to
  Optional Currencies))

  	
   

  	
   

  	
   

  	
  D - 3

  3:00 p.m.

  	
   

  	
  D - 5

  3:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Responses by Lenders to the request (Clause 11.3
  (Conditions relating to Optional
  Currencies))

  	
   

  	
   

  	
   

  	
  D - 2

  1:00 p.m.

  	
   

  	
  D - 4

  1:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent notifies the Company if a currency is
  approved as an Optional Currency in accordance with Clause 11.3 (Conditions relating to Optional Currencies)

  	
   

  	
   

  	
   

  	
  D - 2

  5:00 p.m.

  	
   

  	
  D - 4

  5:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of a duly completed Utilisation
  Request (Clause 12.1 (Delivery of a
  Utilisation Request)) or a Selection Notice (Clause 20.1 (Selection of Interest Periods))

  	
   

  	
  D - 3

  10:00 a.m.

  	
   

  	
  D - 1

  10:00 a.m.

  	
   

  	
  D - 3

  10:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent determines (in relation to a
  Utilisation) the Base Currency Amount of the Loan, if required under Clause 12.4 (Lenders’
  participation) and notifies the Lenders of the Loan in accordance
  with Clause 12.4 (Lenders’  participation)

  	
   

  	
  D - 3

  11:00 a.m.

  	
   

  	
  D - 1

  11:00 a.m.

  	
   

  	
  D - 3

  11:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR or EURIBOR is fixed

  	
   

  	
  Quotation Day as of 11:00 a.m.

  (Brussels time)

  	
   

  	
  Quotation Day as of 11:00 a.m.

   

  	
   

  	
  Quotation Day as of 11:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent receives a notification from a 

  	
   

  	
  Quotation Day 

  	
   

  	
  Quotation Day 

  	
   

  	
  Quotation Day 

  	
   

  



 


148

















 


	
  Lender under Clause 15.2 (Unavailability of a currency)

  	
   

  	
  3:00 p.m.

  	
   

  	
  3:00 p.m.

  	
   

  	
  3:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent gives notice in accordance with Clause 15.2
  (Unavailability of a currency)

  	
   

  	
  Quotation Day 5:00 p.m.

  	
   

  	
  Quotation Day 5:00 p.m.

  	
   

  	
  Quotation Day 5:00 p.m.

  	
   

  



 


149

















 


PART II

LETTERS OF CREDIT OR BANK GUARANTEES


 


	
   

  	
   

  	
  Euro

  	
   

  	
  Sterling

  	
   

  	
  Other Currencies

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Request for approval as an Optional Currency,
  if required (Clause 11.3 (Conditions
  relating to Optional Currencies))

  	
   

  	
   

  	
   

  	
  D - 3

  10:00 a.m.

  	
   

  	
  D - 5

  10:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent notifies the Lenders of the request
  (Clause 11.3 (Conditions relating to
  Optional Currencies))

  	
   

  	
   

  	
   

  	
  D - 3

  3:00 p.m.

  	
   

  	
  D - 5

  3:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Responses by Lenders to the request (Clause 11.3
  (Conditions relating to Optional
  Currencies))

  	
   

  	
   

  	
   

  	
  D - 2

  1:00 p.m.

  	
   

  	
  D - 4

  1:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent notifies the Company if a currency is
  approved as an Optional Currency in accordance with Clause 11.3 (Conditions relating to Optional Currencies)

  	
   

  	
   

  	
   

  	
  D - 2

  5:00 p.m.

  	
   

  	
  D - 4

  5:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of a duly completed Utilisation
  Request (Clause 13.3 (Delivery of a
  Utilisation Request for Letters of Credit or Bank Guarantees)

  	
   

  	
  D - 3

  10:00 a.m.

  	
   

  	
  D - 1

  10:00 a.m.

  	
   

  	
  D - 3

  10:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent determines (in relation to a
  Utilisation) the Base Currency Amount of the Letter of Credit or Bank
  Guarantees, if required under Clause 13.6 (Issue of
  Letters of Credit or Bank Guarantees) and notifies the Issuing
  Bank and the Lenders of the Letter of Credit or Bank Guarantee in accordance
  with Clause 13.6 (Issue of Letters of
  Credit  or Bank Guarantees)

  	
   

  	
  D - 3

  11:00 a.m.

  	
   

  	
  D - 1

  11:00 a.m.

  	
   

  	
  D - 3

  11:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of a duly completed Renewal Request
  (Clause 13.7 (Renewal of a Letter of
  Credit or Bank Guarantee).

  	
   

  	
  D - 3

  10:00 a.m.

  	
   

  	
  D - 1

  10:00 a.m.

  	
   

  	
  D - 3

  10:00 a.m.

  	
   

  



 


150






 












 


SCHEDULE 14


FORM OF LETTER OF CREDIT


 


To:                   [Beneficiary]


 


(the “Beneficiary”)


 


[Date]


 


 


Irrevocable
Standby Letter of Credit no.


 


At the request of [                   ]
Merchant Banking, Skandinaviska Enskilda Banken AB (publ), (the “Issuing Bank”) issues this irrevocable
standby letter of credit (“Letter of Credit”)
in your favour on the following terms and conditions:


 


1.                            Definitions


 


In this Letter of Credit:


 


“Business Day” means a day (other than a Saturday or a Sunday)
on which banks are open for general business in Frankfurt, Helsinki, London and
Stockholm(1).


 


“Demand” means a demand for a payment under this Letter of
Credit in the form of the schedule to this Letter of Credit.


 


“Expiry Date” means [                   ].


 


“Total L/C Amount” means [                   ].


 


2.                            Issuing Bank’s agreement


 


(a)                       The Beneficiary may request a drawing or drawings
under this Letter of Credit by giving to the Issuing Bank a duly completed
Demand.  A Demand must be received by the
Issuing Bank by [                   ]
p.m. ([London] time) on the Expiry Date.


 


(b)                       Subject to the terms of this Letter of Credit, the
Issuing Bank unconditionally and irrevocably undertakes to the Beneficiary
that, within [ten] Business Days of receipt by it of a Demand, it must pay to
the Beneficiary the amount demanded in that Demand.


 


(c)                        The Issuing Bank will not be obliged to make a payment
under this Letter of Credit if as a result the aggregate of all payments made
by it under this Letter of Credit would exceed the Total L/C Amount.


 






(1)                       This
may need to be amended depending on the currency of payment under the Letter of
Credit.


 


151

















 


3.                            Expiry


 


(a)                       The Issuing Bank will be released from its obligations
under this Letter of Credit on the date (if any) notified by the Beneficiary to
the Issuing Bank as the date upon which the obligations of the Issuing Bank
under this Letter of Credit are released.


 


(b)                       Unless previously released under paragraph (a) above,
on [                   ]
p.m. ([London] time) on the Expiry Date the obligations of the Issuing Bank
under this Letter of Credit will cease with no further liability on the part of
the Issuing Bank except for any Demand validly presented under the Letter of
Credit that remains unpaid.


 


(c)                        When the Issuing Bank is no longer under any further
obligations under this Letter of Credit, the Beneficiary must return the
original of this Letter of Credit to the Issuing Bank.


 


4.                            Payments


 


All payments under this Letter of Credit shall
be made in the Base Currency or an Optional Currency and for value on the due
date to the account of the Beneficiary specified in the Demand.


 


5.                            Delivery of Demand


 


Each Demand shall be in writing, and, unless
otherwise stated, may be made by letter or fax and must be received in legible
form by the Issuing Bank at its address and by the particular department or
officer (if any) as follows:


 


[Address of Issuing Bank]


 


Attention: [                   ]


 


6.                            Assignment


 


The Beneficiary’s rights under this Letter of
Credit may not be assigned or transferred.


 


7.                            ISP 98


 


Except to the extent it is inconsistent with
the express terms of this Letter of Credit, this Letter of Credit is subject to
the International Standby Practices (ISP 98), International Chamber of Commerce
Publication No. 590.


 


8.                            Governing Law


 


This Letter of Credit is governed by English
law.


 


9.                            Jurisdiction


 


The courts of England have exclusive
jurisdiction to settle any dispute arising out of or in connection with this
Letter of Credit.


 


Yours faithfully,


 


 


152

















 


Merchant Banking, Skandinaviska Enskilda Banken
AB (publ)


 


 


By:


 


153

















 


SCHEDULE

FORM OF DEMAND


 


To:                   Merchant Banking, Skandinaviska Enskilda Banken AB
(publ)


 


[Date]


 


 


Dear Sirs


Standby
Letter of Credit no. [                   ] issued in favour of [BENEFICIARY]  

(the “Letter of Credit”)


 


We refer to the Letter of Credit.  Terms defined in the Letter of Credit have
the same meaning when used in this Demand.


 


1.                            We certify that the sum of [                   ]
is due [and has remained unpaid for at least [                   ]
Business Days] [under [set out underlying contract or agreement]].  We therefore demand payment of the sum of [                   ].


 


2.                            Payment should be made to the following account:


 


Name:


 


Account
Number:


 


Bank:


 


3.                            The date of this Demand is not later than the Expiry
Date.


 


Yours faithfully


 


 


	
  (Authorised
  Signatory)

  	
  (Authorised Signatory)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  For

  
	
   

  	
   

  
	
   

  	
  [BENEFICIARY]

  



 


154

















 


SCHEDULE 15

FORM OF BANK GUARANTEE


 


To:                   [Beneficiary]


 


(the “Beneficiary”)


 


[Date]


 


Irrevocable Bank Guarantee
No. [                   ]


 


At the request of [                   ],
Merchant Banking, Skandinaviska Enskilda Banken AB (publ) (the “Issuing Bank”) issues this irrevocable bank guarantee (“Bank Guarantee”) in your favour on the following terms and
conditions:


 


1.                            Definitions


 


In this Bank Guarantee:


 


“Business Day” means a day (not being a
Saturday or Sunday) on which banks are open for general business in Frankfurt,
Helsinki, London and Stockholm.


 


“Demand” means a demand for a payment
under this Bank Guarantee in the form of the schedule to this Bank Guarantee.


 


“Expiry Date” means [                   ].


 


“Total Bank Guarantee Account” means [                   ].


 


2.                            Issuing Bank’s agreement


 


(a)                       The Beneficiary may make a demand under this Bank Guarantee by giving to
the Issuing Bank a duly completed Demand. A Demand must be received by the
Issuing Bank by [                   ]
p.m. ([London] time) on the Expiry Date.


 


(b)                       Subject to the terms of this Bank Guarantee, the Issuing Bank
unconditionally and irrevocably undertakes to the Beneficiary that, within
[ten] Business Days of receipt by it of a Demand, it must pay to the
Beneficiary the amount demanded in that Demand.


 


(c)                        The Issuing Bank will not be obliged to make a payment under this Bank
Guarantee if as a result the aggregate of all payments made by it under this
Bank Guarantee would exceed the Total Bank Guarantee Amount.


 


3.                            Expiry


 


(a)                       The Issuing Bank will be released from its obligations under this Bank
Guarantee on the date (if any) notified by the Beneficiary to the Issuing Bank
as the date upon which the obligations of the Issuing Bank under this Bank
Guarantee are released.


 


(b)                       Unless previously released under paragraph (a) above, on [                   ]
p.m. ([London] time) on the Expiry Date the obligations of the Issuing Bank
under this Bank Guarantee will cease with no


 


155

















 


further liability on the part of the Issuing
Bank except for any Demand validly presented under the Bank Guarantee that
remains unpaid.


 


(c)                        When the Issuing Bank is no longer under any further obligations under
this Bank Guarantee, the Beneficiary must return the original of this Bank
Guarantee to the Issuing Bank.


 


4.                            Payments


 


All payments under this Bank Guarantee shall
be made in the Base Currency or an Optional Currency and for value on the due
date to the account of the Beneficiary specified in the Demand.


 


5.                            Delivery of Demand


 


Each Demand shall be in writing, and, unless
otherwise stated, may be made by letter or fax and must be received in legible
form by the Issuing Bank at its address and by the particular department or
officer (if any) as follows:


 


[Address of Issuing Bank]


 


Attention:                           [                   ]


 


6.                            Assignment


 


The Beneficiary’s rights under this Bank
Guarantee may not be assigned or transferred.


 


7.                            ISP 98


 


Except to the extent it is inconsistent with
the express terms of this Bank Guarantee, this Bank Guarantee is subject to the
International Standby Practices (ISP 98), International Chamber of Commerce
Publication No. 590.


 


8.                            Governing Law


 


This Bank Guarantee is governed by English
law.


 


9.                            Jurisdiction


 


The courts of England have exclusive
jurisdiction to settle any dispute arising out of or in connection with this
Bank Guarantee.


 


Yours faithfully


 


Merchant Banking, Skandinaviska Enskilda Banken AB (publ)


 


 


By:


 


156

















 


Schedule to Bank Guarantee

Form of Demand


 


To:                   Merchant Banking, Skandinaviska Enskilda Banken AB (publ)


[Date]


 


Dear Sirs


 


Bank Guarantee. No. [                   ]
issued in favour of [BENEFICIARY] (the “Bank Guarantee”)


 


We refer to the Bank Guarantee. Terms defined in the Bank Guarantee have
the same meaning when used in this Demand.


 


1.                            We certify that the sum of [                   ]
is due [and has remained unpaid for at least [                   ]
Business Days] [under [set out underlying contract or agreement]]. We therefore
demand payment of the sum of [                   ].


 


2.                            Payment should be made to the following account:


 


Name:


Account Number:


Bank:


 


3.                            The date of this Demand is not later than the Expiry Date.


 


Yours faithfully


 


 


	
  (Authorised
  Signatory)

  	
  (Authorised Signatory)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  For

  
	
   

  	
   

  
	
   

  	
  [BENEFICIARY]

  



 


157

















 


SCHEDULE
16

FORM OF RESIGNATION LETTER


 


To:                   [                   ]
as Agent


 


From:     [resigning
Obligor] and Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH


 


Dated:


 


Dear Sirs


Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 Facility Agreement

dated 17 June 2008  (the “Agreement”)


 


1.                            We refer to the Agreement. This is a Resignation
Letter. Terms defined in the Agreement have the same meaning in this
Resignation Letter unless given a different meaning in this Resignation Letter.


 


2.                            Pursuant to [Clause 35.3 (Resignation
of a Borrower)]/[Clause 35.5 (Resignation of a Guarantor)],
we request that [resigning Obligor] be released
from its obligations as a [Borrower]/[Guarantor] under the Agreement and the
Finance Documents.


 


3.                            We confirm that:


 


(a)                        no
Default is continuing or would result form the acceptance of this request; and


 


(b)                        this
request is given in relation to a Third Party Disposal of [resigning
Obligor];


 


(c)                         the
Net Sale Proceeds have been or will be applied in accordance with Clause 18.5 (Mandatory prepayment- Net Sale Proceeds).


 


4.                            This letter is governed by English law.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Deukalion Einhundertvierundzwanzigste 

  	
   

  	
   

  
	
  Vermögensverwaltungs - GmbH

  	
   

  	
  [resigning Obligor]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  By:

  



 


158

















 


SIGNATURE PAGES


 


The  Company


 


Deukalion Einhundertvierundzwanzigste
Vermögensverwaltungs - GmbH


 


Address:           Dr. — Rudolf — Sachtleben — Str. 4


47198, Duisburg


Germany


 


Fax: +49 (2066) 22-3201


 


Email: w.d.griebler@sachtleben.de


 


Attention: Wolf-Dieter Griebler


 


By: DR MARCUS BRUNE


 


 


The  Original Borrowers


 


Deukalion Einhundertvierundzwanzigste
Vermögensverwaltungs - GmbH


 


	
  By:

  	
  DR MARCUS BRUNE

  	
   

  



 


 


Sachtleben Chemie GmbH


 


	
  By:

  	
  DR MARTIN BURGHOLTE

  	
  PROF WOLF-DIETER GRIEBLER

  



 


 


White Pigments Holding Oy


 


	
  By:

  	
  UDO PINGER

  	
   

  



 


 


Kemira Pigments Oy


 


	
  By:

  	
  HANNU VIROLAINEN

  	
   

  



 


 


The  Original Guarantors


 


Deukalion Einhundertvierundzwanzigste
Vermögensverwaltungs - GmbH


 


	
  By:

  	
  DR MARCUS BRUNE

  	
   

  



 

















 


Sachtleben Chemie GmbH


 


	
  By:

  	
  DR MARTIN BURGHOLTE

  	
  PROF WOLF-DIETER GRIEBLER

  



 


 


White Pigments Holding Oy


 


	
  By:

  	
  UDO PINGER

  	
   

  



 


 


Kemira Pigments Oy


 


	
  By:

  	
  HANNU VIROLAINEN

  	
   

  



 


 


The Arranger


 


Merchant Banking, Skandinaviska Enskilda Banken
AB (publ)


 


	
  By:

  	
  MALCOLM CROW

  	
  ÅSA SAMUELSSON

  



 


 


Nordea Bank Finland plc


 


	
  By:

  	
  ESA RAITANEN

  	
  JUHA-MATTI PELTOMAA

  



 


 


The Original Lenders


 


Skandinaviska Enskilda Banken AB (publ)


 


	
  By:

  	
  MALCOLM CROW

  	
  ÅSA SAMUELSSON

  



 


 


Nordea Bank Finland Plc


 


	
  By:

  	
  ESA RAITANEN

  	
  JUHA-MATTI PELTOMAA

  



 

















 


The Agent


 


	
  Merchant Banking,
  Skandinaviska Enskilda Banken AB (publ)

  
	
   

  
	
  Address:

  	
  Skandinaviska Enskilda Banken AB (publ)

  
	
   

  	
  Rissneleden 110

  
	
   

  	
  SE-106 40 Stockholm

  
	
   

  	
   

  
	
  Attention:

  	
  SCO

  
	
   

  	
   

  
	
  E-mail:

  	
  sco@seb.se

  
	
   

  	
   

  
	
  Fax number:

  	
  + 46 8 611 03 84

  
	
   

  	
   

  
	
  With a copy to:

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Loan Agency

  
	
   

  	
  Capital Markets, SEB

  
	
   

  	
  Scandinavian House

  
	
   

  	
  2 Cannon Street

  
	
   

  	
  London EC4M 6XX

  
	
   

  	
   

  
	
  E-mail:

  	
  agency@seb.co.uk

  
	
   

  	
   

  
	
  Fax number:

  	
  + 44 207 329 2304

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  MALCOLM CROW

  	
  ÅSA SAMUELSSON

  
	
   

  
	
   

  
	
  The  Security Agent

  
	
   

  
	
  Merchant Banking,
  Skandinaviska Enskilda Banken AB (publ)

  
	
   

  
	
  Address:

  	
  Loan Agency

  
	
   

  	
  Capital Markets, SEB

  
	
   

  	
  Scandinavian House

  
	
   

  	
  2 Cannon Street

  
	
   

  	
  London EC4M 6XX

  
	
   

  	
   

  
	
  E-mail:

  	
  agency@seb.co.uk

  
	
   

  	
   

  
	
  Fax number:

  	
  + 44 207 329 2304

  
	
   

  	
   

  
	
  Attention:

  	
  Loan Agency

  
	
   

  	
   

  
	
  By:

  	
  MALCOLM CROW

  	
  ÅSA SAMUELSSON

  
	
   

  
	
   

  
	
  The  Issuing Bank

  
	
   

  
	
  Merchant Banking,
  Skandinaviska Enskilda Banken AB (publ)

  
	
   

  
	
  By:

  	
  MALCOLM CROW

  	
  ÅSA SAMUELSSON