Exhibit 10.2


 


CONFORMED COPY


 


 


€330,000,000


 


FACILITY AGREEMENT


 


Dated 17 June 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


 

















 


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

  
				



 


i

















 


	
   

  	
  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

  
				



 


ii

















 


THIS
AGREEMENT is dated 17 June 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 Part I
of Schedule 1 as original borrowers (together with the Company, the “Original Borrowers”);


 


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


 


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


 


(5)                            THE FINANCIAL INSTITUTIONS listed in Part II of
Schedule 1 as lenders (the “Original Lenders”);


 


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


 


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


 


(8)                            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


 


1.                                 Definitions and
interpretation


 


1.1                           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 6 (Form of Accession Letter).


 


“Additional Borrower” means a company which
becomes an Additional Borrower in accordance with Clause 28 (Changes to the Obligors).


 


“Additional Cost Rate” has the meaning given
to it in Schedule 4 (Mandatory Cost
formulae).


 


“Additional Guarantor” means a company which
becomes an Additional Guarantor in accordance with Clause 28 (Changes to the Obligors).


 


1

















 


“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 9 (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 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.


 


2

















 


“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 new 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.


 


“Base Currency Amount” means:


 


3

















 


(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 6.8 (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 9.3 (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 24 (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 or Sparkassen (Allgemeine Geschäftsbedingungen der Banken oder Sparkassen)
with whom any member of the Group maintains its banking arrangements);


 


4
















 


(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 24 (Financial
covenants).


 


“Clean Down Period” has the meaning given to
it in Clause 11.15 (Clean Down).


 


“Commencement Date” has the meaning given to
it in Clause 9.3 (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 8 (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” means has the meaning given
to it in Clause 24 (Financial covenants).


 


“Current Liabilities” means has the meaning
given to it in Clause 24 (Financial
covenants).


 


“Debt” means has the meaning given to it in
Clause 24 (Financial covenants).


 


“Debt Service” has the meaning given to it
in Clause 24 (Financial covenants).


 


“Default” means an Event of Default or any
event or circumstance specified in Clause 26 (Events
of Default) which would (with the expiry of a grace period, the giving
of notice, the 


 


5

















 


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


 


6

















 


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 26 (Events
of Default).


 


“Exceptional Items” has the meaning given to
it in Clause 24 (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 2 (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 1 (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 10.1 (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 2 (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 1 (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 9 (Ancillary
Facilities)).


 


“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.


 


7

















 


“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 15 (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 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


 


8

















 


(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 24 (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 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


 


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


 


“Group” means:


 


9

















 


(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 24 (Financial covenants).


 


“Interest Period” means, in relation to a
Loan, each period determined in accordance with Clause 13 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 12.3 (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 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.


 


10

















 


“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 4 (Conditions
of Utilisation) or Clause 28 (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


 


(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:


 


11

















 


(a)                                   any Original Lender; and


 


(b)                                  any bank, financial institution, trust, fund or other
entity which has become a Party in accordance with Clause 27 (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 11 (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 4 (Mandatory Cost  formulae).


 


“Margin” means 3.00 per cent. per annum,
subject to adjustment in accordance with Clause 12.5 (Adjustment of Margin).


 


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


 


12

















 


(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 24.1 (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 4.1 (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:


 


(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.


 


13

















 


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


 


“Net Debt” has the meaning given to it in
Clause 24 (Financial covenants).


 


“Net Interest Expenses” has the meaning
given to it in Clause 24 (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 24 (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
4.3 (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.


 


“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 24 (Financial covenants).


 


14
















 


“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 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 


 


15

















 


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 25.22 (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 24.1 (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


 


(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:


 


16

















 


(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 25.23 (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 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 


 


17

















 


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, 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;


 


(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;


 


18

















 


(l)                                      until the date of first Utilisation of any Facility,
the loan in the principal amount of €31,262,648.78 made available by Neliapila
Pension Fund to Kemira Oy; or


 


(m)                              any Financial Indebtedness not falling within
paragraphs (a) to (l) 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;


 


(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;


 


19

















 


(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 (l) 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, 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


 


20

















 


(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 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;


 


21

















 


(j)                                     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 acceded to the Subordination Agreement;


 


(k)                                  the US JV Loan; or


 


(l)                                      any loan, credit or other arrangement having a similar
effect not falling within paragraphs (a) to (k), 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;


 


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


 


22

















 


(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, securing indebtedness
the principal amount of which (when aggregated with the principal amount of any
other indebtedness which has the benefit of Security or Quasi Security 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


 


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


 


23
















 


(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 16 (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.


 


“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 


 


24

















 


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 10.1 (Repayment  of
Facility A Loans).


 


“Repeating Representations” means each of
the representations set out in Clauses 22.1 (Status),
22.2 (Binding obligations), 22.3
(Non-conflict with other obligations),
22.4 (Power and authority), 22.5
(Validity  and admissibility in evidence), 22.6 (Governing law and enforcement), 22.9 (No default), and paragraph (c) of
22.11 (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 8.2 (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 with the commercial register (Handelsregister)
of the local court (Amtsgericht)
of Duisburg under the registration number HR B 1 96 69.


 


25

















 


“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 7 (Security agency provisions).


 


“Selection Notice” means a notice
substantially in the form set out in Part II of Schedule 3 (Requests) given in accordance with Clause
13 (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 10 (Timetables).


 


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


 


26

















 


“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.


 


“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.


 


27

















 


“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 5 (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 3 (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 24 (Financial covenants).


 


1.2                           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:


 


(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 


 


28

















 


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.


 


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.


 


30

















 


SECTION 2


 


The
Facilities


 


2.                                 The Facilities


 


2.1                           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.


 


2.2                           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.


 


3.                                 Purpose


 


3.1                           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.


 


3.2                           Monitoring


 


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


 


4.                                 Conditions of Utilisation


 


4.1                           Initial conditions precedent


 


No
Borrower may deliver a Utilisation Request unless the Agent has received all of
the documents and other evidence listed in Part I of Schedule 2 (Conditions precedent) in form and 


 


31

















 


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


 


4.2                           Further conditions precedent


 


(a)                            The Lenders will only be obliged to comply with Clause
5.4 (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.


 


4.3                           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

















 


4.4                           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 8.2 (Unavailability of a currency) shall not be
taken into account in this Clause 4.4.


 


33
















 


SECTION 3


 


UTILISATION


 


5.                                 Utilisation - Loans


 


5.1                           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.


 


5.2                           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 5.3 (Currency and amount);


 


(v)                                  the proposed Interest Period complies with Clause 13 (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.


 


5.3                           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;


 


(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 4.3 (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.


 


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


 


34

















 


	
  Borrower

  	
   

  	
  Aggregate amount of Facility A Loans (€)

  	
   

  
	
  Sachtleben Chemie

  	
   

  	
  183,000,000

  	
   

  
	
  Kemira Pigments

  	
   

  	
  50,000,000

  	
   

  
	
  Finnish HoldCo

  	
   

  	
  67,000,000

  	
   

  



 


5.4                           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.


 


5.5                           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.


 


6.                                 Utilisation - Letters of
Credit and Bank Guarantees


 


6.1                           General


 


(a)                            In this Clause 6 and Clause 7 (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 6.7 (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.


 


(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;


 


35

















 


(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 5 (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.


 


6.2                           Facility B


 


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


 


6.3                           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 3 (Utilisation
Request - Letters of Credit and Bank Guarantees) not later than the
Specified Time.


 


6.4                           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 5.3 (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;


 


(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.


 


36

















 


6.5                           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 4.3 (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.


 


6.6                           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 6.7 (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.


 


6.7                           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 6.4 (Completion of a Utilisation
Request for Letters of Credit  or
Bank Guarantees) shall not apply.


 


37

















 


(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.


 


6.8                           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.


 


7.                                 Letters of Credit and Bank
Guarantees


 


7.1                           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.


 


7.2                           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.


 


(b)                           If paragraph (a) and the conditions and procedure
for transfer specified in Clause 27 (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.


 


38

















 


7.3                           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.


 


7.4                           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


 


(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.


 


39

















 


7.5                           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 7.5 (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;


 


(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;


 


40

















 


(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.


 


7.6                           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.


 


7.7                           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:


 


(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.


 


41

















 


7.8                           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.


 


7.9                           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 29.15 (Credit appraisal by the Lenders).


 


7.10                     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.


 


7.11                     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.


 


8.                                 Optional Currencies


 


8.1                           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.


 


8.2                           Unavailability of a currency


 


If
before the Specified Time on any Quotation Day:


 


(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 8.2 will be required to participate in the Loan in the Base Currency (in
an amount equal to that Lender’s proportion of 


 


42

















 


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.


 


9.                                 Ancillary Facilities


 


9.1                           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 9 by designating all or
part of the Facility B Commitment of a Lender as an Ancillary Commitment.


 


9.2                           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.


 


9.3                           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 9.2 (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;


 


(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.


 


43
















 


(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.


 


9.4                           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.


 


9.5                           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 9.8 (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),


 


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).


 


9.6                           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 9 and
the details set out in the Ancillary Facility Request;


 


44

















 


(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 9.8 (Voluntary cancellation of Ancillary Facilities),
Clause 11  (Prepayment and cancellation)
or Clause 26.16 (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 9.


 


(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.


 


9.7                           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.


 


9.8                           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.


 


9.9                           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.


 


45

















 


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


 


9.10                     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


 


10.                           Repayment


 


10.1                     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.


 


10.2                     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

















 


10.3                     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.


 


11.                           Prepayment and cancellation


 


11.1                     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.


 


11.2                     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).


 


11.3                     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.


 


11.4                     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 11.4 shall reduce the Commitments
of the Lenders rateably under that Facility.


 


11.5                     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 11.6 (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).


 


11.6                     Application of Net Sale Proceeds
prepayment


 


(a)                            In this Clause 11.6, “Receipt Date” means the date on which any Net Sale Proceeds to
which paragraph (a) of Clause 11.5 (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 11.6 shall satisfy
the obligations under Clause 10.1 (Repayment
of Facility A Loans) in inverse chronological order.


 


11.7                     Mandatory prepayment - Insurance
Proceeds


 


(a)                            The Company shall ensure that an amount equal to all
Insurance Proceeds is applied in accordance with Clause 11.8 (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).


 


11.8                     Application of Insurance Proceeds
prepayment


 


(a)                            In this Clause 11.8, “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 10.1 (Repayment
of Facility A Loans) in inverse chronological order.


 


11.9                     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.


 


11.10               Restriction on upstream payments


 


(a)                            If there is a requirement to make a mandatory
prepayment pursuant to Clause 11.5 (Mandatory
prepayment - Net Sale Proceeds) or Clause 11.7 (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 11.10,
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 11.5 (Mandatory
prepayment - Net Sale Proceeds) to 11.9 (Excluded proceeds).


 


11.11               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 11.11 shall satisfy
the obligations under Clause 10.1 (Repayment
of Facility A Loans) in inverse chronological order.


 


52
















 


11.12               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).


 


11.13               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 16.2 (Tax gross-up); or


 


(ii)                                   any Lender or Ancillary Lender or the Issuing Bank
claims indemnification from the Company under Clause 16.3 (Tax indemnity) or Clause 17 (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

















 


11.14               Restrictions


 


(a)                            Any notice of cancellation or prepayment given by any
Party under this Clause 11 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 11 it
shall promptly forward a copy of that notice to either the Company or the
affected Lender, as appropriate.


 


11.15               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


 


12.                           Interest


 


12.1                     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.


 


12.2                     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).


 


12.3                     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 12.3
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.


 


12.4                     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.


 


12.5                     Adjustment of Margin


 


(a)                            Subject to this Clause 12.5, 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 23.2 (Compliance
Certificate).


 


(d)                           If the Margin for a Utilisation is reduced for any
period under this Clause 12.5 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.


 


13.                           Interest Periods


 


13.1                     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 13.2 (Changes to Interest Periods), be one
Month.


 


(d)                           Subject to this Clause 13, 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

















 


13.2                     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 13.2, it shall promptly notify the Company
and the Lenders.


 


13.3                     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).


 


13.4                     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 4.4 (Maximum number of Utilisations) and Clause 5.3 (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.


 


14.                           Changes to the calculation
of interest


 


14.1                     Absence of quotations


 


Subject
to Clause 14.2 (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.


 


14.2                     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.


 


14.3                     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.


 


14.4                     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.


 


15.                           Fees


 


15.1                     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.


 


15.2                     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

















 


15.3                     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.


 


15.4                     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.


 


15.5                     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.


 


15.6                     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


 


16.                           Tax gross up and
indemnities


 


16.1                     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 16.2 (Tax gross-up) or a payment under Clause
16.3 (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
16 a reference to “determines” or “determined” means a determination made in
the absolute discretion of the person making the determination.


 


16.2                     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.


 


62

















 


(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.


 


16.3                     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 16.2 (Tax gross-up); or


 


(B)                             would have been compensated for by an increased
payment under Clause 16.2 (Tax gross-up)
but was not so compensated solely because one of the exclusions in paragraph (d) of
Clause 16.2 (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 16.3, notify the Agent.


 


63

















 


16.4                     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.


 


16.5                     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.


 


16.6                     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.


 


16.7                     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.


 


17.                           Increased costs


 


17.1                     Increased costs


 


(a)                            Subject to Clause 17.3 (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.


 


17.2                     Increased cost claims


 


(a)                            A Finance Party intending to make a claim pursuant to
Clause 17.1 (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.


 


17.3                     Exceptions


 


(a)                            Clause 17.1 (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 16.3 (Tax indemnity) (or would have been compensated
for under Clause 16.3 (Tax indemnity)
but was not so compensated solely because any of the exclusions in paragraph (b) of
Clause 16.3 (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 17.3, a reference to a “Tax Deduction”
has the same meaning given to the term in Clause 16.1 (Definitions).


 


18.                           Other indemnities


 


18.1                     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.


 


18.2                     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 32 (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.


 


18.3                     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


 


66

















 


(b)                                  acting or relying on any notice, request or
instruction which it reasonably believes to be genuine, correct and
appropriately authorised.


 


19.                           Mitigation by the Lenders


 


19.1                     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 11.1 (Illegality
in relation to a Lender or the Issuing Bank),
Clause 11.2 (Illegality in relation to an
Ancillary Lender), Clause 16 (Tax
gross-up and indemnities) or Clause 17 (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.


 


19.2                     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 19.1 (Mitigation).


 


(b)                           A Finance Party is not obliged to take any steps under
Clause 19.1 (Mitigation) if, in
the opinion of that Finance Party (acting reasonably), to do so might be
prejudicial to it.


 


20.                           Costs and expenses


 


20.1                     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.


 


20.2                     Amendment costs


 


If (a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is
required pursuant to Clause 33.9 (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.


 


20.3                     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.


 


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20.4                     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.


 


20.5                     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.


 


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SECTION 7


 


guarantee


 


21.                           Guarantee and indemnity


 


21.1                     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 21 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 21 if the amount
claimed had been recoverable on the basis of a guarantee.


 


21.2                     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.


 


21.3                     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.


 


21.4                     Waiver of defences


 


The
obligations of each Guarantor under this Clause 21 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 21 (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;


 


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(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.


 


21.5                     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 21.  This
waiver applies irrespective of any law or any provision of a Finance Document
to the contrary.


 


21.6                     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 21.


 


21.7                     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 33 (Payment mechanics)
of this Agreement.


 


21.8                     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.


 


21.9                     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.


 


21.10               Preservation of stated share capital
of a German Guarantor


 


(a)                            To the extent that the guarantee created under this
Clause 21 (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 21.10 (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.


 


21.11               Limitation applicable to Finnish
Guarantors


 


No
obligations of any Guarantor incorporated in Finland under this Clause 21 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.


 


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SECTION 8


 


REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT


 


22.                           Representations


 


Each
Obligor makes the representations and warranties set out in this Clause 22 to
each Finance Party on the date of this Agreement.


 


22.1                     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.


 


22.2                     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.


 


22.3                     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.


 


22.4                     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.


 


22.5                     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,


 


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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.


 


22.6                     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.


 


22.7                     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.


 


22.8                     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.


 


22.9                     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.


 


22.10               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.


 


22.11               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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22.12               Pari passu ranking


 


Without
limiting Clause 21.17 (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.


 


22.13               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.


 


22.14               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.


 


22.15               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.


 


22.16               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.


 


22.17               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.


 


22.18               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.


 


22.19               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.


 


22.20               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.


 


22.21               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.


 


22.22               Insurances


 


(a)                            The insurances required by Clause 24.7 (Insurance) are in full force and effect as
required by this Agreement.


 


78
















 


(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.


 


22.23               Repetition


 


The Repeating
Representations (and, in the case of paragraph (b) below, the
representations set out in Clauses 22.5 (Validity
and admissibility in evidence) and 22.8 (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.


 


23.                           Information undertakings


 


The
undertakings in this Clause 23 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.


 


23.1                     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.


 


23.2                     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 23.1 (Financial statements),
a Compliance Certificate setting out (in reasonable detail) computations as to
compliance with Clause 24 (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 23.1 (Financial statements), shall be reported
on by the Company’s auditors in the form reasonably required by the Agent.


 


23.3                     Requirements as to financial
statements


 


(a)                            Each set of financial statements delivered by the
Company pursuant to Clause 23.1 (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 23.1 (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.


 


23.4                     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.


 


23.5                     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).


 


23.6                     “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 28 (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.


 


24.                           Financial covenants


 


24.1                     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

  	
   

  



 


24.2                     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,


 


83

















 


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:


 


84

















 


(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.


 


86
















 


“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.


 


24.3                     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 24) from the financial statements of the Group and Compliance
Certificates delivered under Clause 23.1 (Financial
statements), and Clause 23.2 (Compliance
Certificate).


 


(c)                                   For the purpose of this Clause 24, 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 24, 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
24.1 (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 24 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 24 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 24 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.


 


25.                           General undertakings


 


The
undertakings in this Clause 25 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.


 


25.1                     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.


 


25.2                     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.


 


25.3                     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.


 


25.4                     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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25.5                     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.


 


25.6                     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.


 


25.7                     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.


 


25.8                     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.


 


25.9                     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.


 


25.10               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.


 


25.11               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.


 


25.12               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.


 


25.13               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.


 


25.14               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.


 


25.15               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.


 


25.16               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.


 


25.17               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.


 


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25.18               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.


 


25.19               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.


 


25.20               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.


 


25.21               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).


 


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(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.


 


25.22               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 28 (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.


 


25.23               Issue of shares


 


(a)                            No Obligor (other than the Company) shall (and the
Company shall ensure that no other member of the Group will):


 


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(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.


 


26.                           Events of Default


 


Each
of the events or circumstances set out in Clause 26 is an Event of Default
(save for Clause 26.16 (Acceleration).


 


26.1                     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.


 


26.2                     Financial covenants


 


Any
requirement of Clause 24 (Financial
covenants) is not satisfied.


 


26.3                     Other obligations


 


(a)                            Any person (other than a Finance Party) does not
comply with Clauses 25.4 (Disposals),
25.5 (Merger), 25.14 (Financial Indebtedness), 25.16 (Acquisitions), 25.21 (Joint ventures) and 25.22 (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 26.1 (Non-payment) and Clause 26.2 (Financial covenants) and paragraph (a) above),
unless the failure to comply is capable of remedy and is remedied within 20
Business Days of the earlier of the Agent giving notice to the Company or the
Company becoming aware of the failure to comply.


 


26.4                     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.


 


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26.5                     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 26.5
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).


 


26.6                     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.


 


26.7                     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


 


(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;


 


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(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 26.7 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.


 


26.8                     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.


 


26.9                     Ownership of the Obligors


 


An
Obligor (other than the Company) is not or ceases to be a Subsidiary of the
Company.


 


26.10               Unlawfulness


 


It
is or becomes unlawful for an Obligor to perform any of its obligations under
the Finance Documents.


 


26.11               Repudiation


 


An
Obligor repudiates a Finance Document or evidences an intention to repudiate a
Finance Document.


 


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26.12               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.


 


26.13               Material adverse change


 


The
Majority Lenders (acting reasonably) determine that a Material Adverse Effect
exists, has occurred or might reasonably be expected to occur.


 


26.14               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.


 


26.15               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.


 


26.16               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


 


(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



 


96

















 


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


 


27.                           Changes to the Lenders


 


27.1                     Assignments and transfers by the
Lenders


 


Subject
to this Clause 27, 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”).


 


27.2                     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 27.5 (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 16 (Tax gross-up and
indemnities) or Clause 17 (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.


 


27.3                     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.


 


27.4                     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 27; 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.


 


27.5                     Procedure for transfer


 


(a)                            Subject to the conditions set out in Clause 27.2 (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”.


 


27.6                     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.


 


27.7                     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 27.8 (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.


 


27.8                     Security over Lenders’ rights


 


In
addition to the other rights provided to Lenders under this Clause 27, 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.


 


28.                           Changes to the Obligors


 


28.1                     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.


 


28.2                     Additional Borrowers


 


(a)                            Subject to compliance with the provisions of
paragraphs (c) and (d) of Clause 23.6 (“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 2 (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 2 (Conditions precedent).


 


28.3                     Resignation of a Borrower


 


(a)                            In this Clause 28.3 (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 25.4 (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 28.5 (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 11.5 (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.


 


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(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.


 


28.4                     Additional Guarantors


 


(a)                            Subject to compliance with the provisions of
paragraphs (c) and (d) of Clause 23.6 (“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 2 (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 2 (Conditions precedent).


 


28.5                     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 28.3 (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 21.1
(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 28.3 (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 11.5 (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.


 


28.6                     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 22.5 (Validity and admissibility in
evidence), 22.7 (Deduction of Tax)
and 22.8 (No filing or stamp taxes)
are true 


 


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and
correct in relation to it as at the date of delivery as if made by reference to
the facts and circumstances then existing.


 


28.7                     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


 


29.                           Role of the Agent, the
Security Agent and the Arranger


 


29.1                     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.


 


29.2                     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 7 (Security Agency provisions).


 


(f)                              The duties of the Agent and the Security Agent under
the Finance Documents are solely mechanical and administrative in nature.


 


29.3                     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.


 


29.4                     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.


 


29.5                     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.


 


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(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.


 


29.6                     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.


 


29.7                     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 26.1 (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.


 


29.8                     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 


 


106

















 


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.


 


29.9                     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.


 


29.10               Exclusion of liability


 


(a)                            Without limiting paragraph (b) below (and without
prejudice to the provisions of paragraph (e) of Clause 33.11 (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.


 


(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.


 


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(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.


 


29.11               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 33.11 (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).


 


29.12               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.


 


(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 29. 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.


 


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(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.


 


29.13               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.


 


29.14               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 4 (Mandatory Cost
formulae).


 


29.15               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 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.


 


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29.16               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.


 


29.17               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 18.3 (Indemnity
to the Agent  and the Security
Agent), Clause 20 (Costs and expenses) and Clause 29.11 (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 15 (Fees).


 


29.18               Security Agency provisions


 


The
provisions of Schedule 7 (Security Agency
provisions) shall bind each Party.


 


29.19               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.


 


30.                           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.


 


(c)                            For the purpose of this Clause 30, 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.


 


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(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 7 (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.


 


31.                           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.


 


32.                           Sharing among the Finance
Parties


 


32.1                     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 33 (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 33 (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 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 33.5 (Partial payments).


 


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32.2                     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 33.5 (Partial
payments).


 


32.3                     Recovering Finance Party’s rights


 


(a)                            On a distribution by the Agent under Clause 32.2 (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.


 


32.4                     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 32.2 (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.


 


32.5                     Exceptions


 


(a)                            This Clause 32 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.


 


32.6                     Loss sharing


 


(a)                            In this Clause:


 


“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 26.16 (Acceleration)
or the date (if any) on which the Facilities are cancelled under Clause 11.3 (Change of control).


 


112

















 


(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.


 


113
















 


SECTION 11


 


ADMINISTRATION


 


33.                           Payment mechanics


 


33.1                     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 33.10 (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.


 


33.2                     Distributions by the Agent


 


Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 33.3 (Distributions
to  an  Obligor) and Clause 33.4 (Clawback) and Clause 33.10 (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).


 


33.3                     Distributions to an Obligor


 


The
Agent and the Security Agent may (with the consent of the Obligor or in
accordance with Clause 34 (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.


 


33.4                     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.


 


114

















 


33.5                     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 7.4 (Claims under a Letter of Credit or Bank Guarantee)
and 7.5 (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 26.16 (Acceleration)
or any date on which the Facilities are cancelled pursuant to Clause 11.3 (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.


 


33.6                     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.


 


33.7                     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.


 


33.8                     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.


 


33.9                     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.


 


33.10               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.


 


33.11               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;


 


116

















 


(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 39 (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
33.11; and


 


(f)                                     the Agent shall notify the Finance Parties of all
changes agreed pursuant to paragraph (d) above.


 


34.                           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.


 


35.                           Notices


 


35.1                     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.


 


35.2                     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.


 


35.3                     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


 


117

















 


(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 35.2 (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.


 


35.4                     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 35.2 (Addresses)
or changing its own address or fax number, the Agent shall notify the other
Parties.


 


35.5                     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.


 


35.6                     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

















 


36.                           Calculations and
certificates


 


36.1                     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.


 


36.2                     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.


 


36.3                     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.


 


37.                           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.


 


38.                           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.


 


39.                           Amendments and waivers


 


39.1                     Required consents


 


(a)                            Subject to Clause 39.2 (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.


 


39.2                     Exceptions


 


(a)                            An amendment or waiver that has the effect of changing
or which relates to:


 


(i)                                      the definition of “Majority Lenders” in Clause 1.1 (Definitions);


 


(ii)                                   an extension to the date of payment of any amount
under the Finance Documents (other than an amount owing under Clause 11.5 (Mandatory prepayment — Net Sale Proceeds)
or Clause 11.7 (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 28 (Changes to the
Obligors);


 


(vi)                               any provision which expressly requires the consent of
all the Lenders;


 


(vii)                            Clause 2.2 (Finance
Parties’ rights and obligations), Clause 11.3 (Change of Control), Clause 27 (Changes to the Lenders), Clause 32 (Sharing among the Finance Parties) or this
Clause 39; 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.


 


40.                           Counterparts


 


Each
Finance Document may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on a single copy
of the Finance Document.


 


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SECTION 12


 


GOVERNING
LAW AND ENFORCEMENT


 


41.                           Governing law


 


This
Agreement is governed by English law.


 


42.                           Enforcement


 


42.1                     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 42.1 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.


 


42.2                     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.


 


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Schedule
1


 


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
2


 


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.


 


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(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 2 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
42.2 (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 15 (Fees)
and Clause 20 (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:


 


(i)                                      the Kemira Pledge has been released in full or will be
released in full; and


 


(ii)                                   all Financial Indebtedness secured by the Kemira
Pledge will be repaid and cancelled in full,


 


in
each case 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 2 is correct, complete and in full force and effect as at a date no
earlier than the date of the Accession Letter.


 


9.                                 A copy of any other Authorisation or other document,
opinion or assurance which the Agent considers 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 42.2 (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
3


 


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 4.2
(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 6.6
(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
4


 


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 12.3 (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
5


 


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 27.5 (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 27.5 (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 35.2
(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
27.4 (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
6


 


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 28.2 (Additional Borrowers)]/[Clause 28.4 (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
7


 


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 30 (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
8


 


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
9



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
10



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 4.3 (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 4.3 (Conditions relating to Optional Currencies))

  	
   

  	
   

  	
   

  	
  D
  - 3 

  3:00 p.m.

  	
   

  	
  D
  - 5 

  3:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Responses
  by Lenders to the request (Clause 4.3 (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 4.3 (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 5.1 (Delivery of a Utilisation Request)) or a
  Selection Notice (Clause 13.1 (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 5.4 (Lenders’
  participation) and notifies the Lenders of the Loan in accordance
  with Clause 5.4 (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 Lender under Clause 8.2 (Unavailability 

  	
   

  	
  Quotation
  Day 

  	
   

  	
  Quotation
  Day 

  	
   

  	
  Quotation
  Day 

  	
   

  



 


148

















 


	
  of a currency)

  	
   

  	
  3:00 p.m.

  	
   

  	
  3:00 p.m.

  	
   

  	
  3:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent
  gives notice in accordance with Clause 8.2 (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 4.3 (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 4.3 (Conditions relating to Optional Currencies))

  	
   

  	
   

  	
   

  	
  D
  - 3

  3:00 p.m.

  	
   

  	
  D
  - 5

  3:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Responses
  by Lenders to the request (Clause 4.3 (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 4.3 (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 6.3 (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 6.6 (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 6.6 (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 6.7 (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
11



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.


 


152

















 


Yours
faithfully,


 


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
12



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
13



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 28.3 (Resignation of a Borrower)]/[Clause 28.5 (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 11.5 (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                                                            ÄSA SAMUELSSON


 


 


Nordea
Bank Finland plc


 


By:
ESA RAITANEN                                                                            JUHA-MATTI PELTOMAA


 


 


The Original Lenders


 


Skandinaviska
Enskilda Banken AB (publ)


 


By:
MALCOLM CROW                                                            ÄSA 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

  	
  ÄSA 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

  	
  ÄSA SAMUELSSON

  
	
   

  	
   

  
	
  The  Issuing Bank

  	
   

  
	
   

  	
   

  
	
  Merchant Banking, Skandinaviska Enskilda
  Banken AB (publ)

  
	
   

  	
   

  
	
  By:
  MALCOLM CROW

  	
  ÄSA SAMUELSSON