Exhibit 10.64


 


EXECUTION VERSION


 


AMENDMENT AND RESTATEMENT AGREEMENT


 


dated
29 August 2008


 


for


 


DEUKALION
EINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS - 


GMBH


 


arranged
by


MERCHANT BANKING, SKANDINAVISKA
ENSKILDA BANKEN AB (PUBL) AND 


NORDEA BANK FINLAND PLC


 


with


 


MERCHANT BANKING,
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


acting
as Agent


 


RELATING TO A FACILITY AGREEMENT DATED


 


17 June 2008


 





 


Ref: NHAX/GEM


 


Linklaters LLP


 

















 


CONTENTS


 


	
  CLAUSE

  	
   

  	
  PAGE

  
	
   

  	
   

  
	
  1.

  	
  Definitions and interpretation

  	
  i

  
	
  2.

  	
  Conditions precedent

  	
  ii

  
	
  3.

  	
  Representations

  	
  ii

  
	
  4.

  	
  Amendment

  	
  ii

  
	
  5.

  	
  Transaction expenses

  	
  ii

  
	
  6.

  	
  Miscellaneous

  	
  ii

  
	
  7.

  	
  Governing law

  	
  iii

  
				



 


THE SCHEDULES


 


	
  SCHEDULE

  	
   

  	
  PAGE

  
	
   

  	
   

  
	
  SCHEDULE 1 The Original Obligors

  	
  iv

  
	
  SCHEDULE 2 Conditions precedent

  	
  v

  
	
  SCHEDULE 3 Form of Amended Agreement

  	
  vii

  



 

















 


THIS AGREEMENT is dated 29 August 2008
and made between:


 


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


 


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


 


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


 


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


 


IT IS AGREED as follows:


 


1.                               DEFINITIONS AND INTERPRETATION


 


1.1                         Definitions


 


In this Agreement:


 


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


 


“Effective
Date” means the date of this Agreement.


 


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


 


“Party” means a
party to this Agreement.


 


1.2                         Incorporation of defined terms


 


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


 


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


 


1.3                         Third Party Rights


 


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


 


1.4                         Designation


 


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


 


i

















 


2.                               CONDITIONS SUBSEQUENT


 


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


 


3.                               REPRESENTATIONS


 


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


 


(a)                                   on the date of this Agreement; and


 


(b)                                  on the Effective Date,


 


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


 


4.                               AMENDMENT


 


4.1                         Amendment


 


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


 


4.2                         Continuing obligations


 


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


 


5.                               TRANSACTION EXPENSES


 


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


 


6.                               MISCELLANEOUS


 


6.1                         Incorporation of terms


 


The provisions of Clause 35 (Notices) and Clause 42 (Enforcement) of the Original Facility
Agreement shall be incorporated into this Agreement as if set out in full in
this Agreement and as if references in those clauses to “this Agreement” are
references to this Agreement.


 


6.2                         Counterparts


 


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


 


ii

















 


7.                               GOVERNING LAW


 


This Agreement is governed by English
law.


 


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


 


iii

















 


SCHEDULE 1


 


THE ORIGINAL OBLIGORS


 


Name of Original Borrower


 


SACHTLEBEN
CHEMIE GMBH


 


FINNISH
HOLDCO


 


KEMIRA
PIGMENTS OY


 


Name of Original Guarantor


 


SACHTLEBEN
CHEMIE GMBH


 


FINNISH
HOLDCO


 


KEMIRA
PIGMENTS OY


 


iv

















 


SCHEDULE 2


 


CONDITIONS SUBSEQUENT


 


1.                               Obligors


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2.                               Legal opinions


 


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


 


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


 


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


 


v

















 


3.                               Other documents and evidence


 


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


 


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


 


vi

















 


SCHEDULE 3


 


FORM OF AMENDED AGREEMENT


 


€330,000,000


 


FACILITY AGREEMENT


 


Dated
17 June 2008


as
amended and restated on                August 2008


 


for


 


DEUKALION
EINHUNDERTVIERUNDZWANZIGSTE 


VERMÖGENSVERWALTUNGS
- GMBH


 


arranged by


 


MERCHANT
BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) AND 


NORDEA
BANK FINLAND PLC


 


with


 


MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


acting
as Agent


 


and


 


MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


acting
as Security Agent


 


and


 


MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


acting
as Issuing Bank


 





 


Ref: NHAX/GEM


 


Linklaters LLP


 


vii
















 


	
  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

  
				



 


viii

















 


	
  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

  	
   

  
	
  SCHEDULE 3 Requests

  	
   

  
	
  SCHEDULE 4 Mandatory Cost formulae

  	
   

  
	
  SCHEDULE 5 Form of Transfer Certificate

  	
   

  
	
  SCHEDULE 6 Form of Accession Letter

  	
   

  
	
  SCHEDULE 7 Security Agency Provisions

  	
   

  
	
  SCHEDULE 8 Form of Compliance Certificate

  	
   

  
	
  SCHEDULE 9 Existing Security

  	
   

  
	
  SCHEDULE 10 Timetables

  	
   

  
	
  SCHEDULE 11 Form of Letter of Credit

  	
   

  
	
  SCHEDULE 12 Form of Bank Guarantee

  	
   

  
	
  SCHEDULE 13 Form of Resignation Letter

  	
   

  



 


ix

















 


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

  



 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


IT IS AGREED as follows:


 


SECTION 1


 


INTERPRETATION


 


8.                               DEFINITIONS AND INTERPRETATION


 


8.1                         Definitions


 


In this Agreement:


 


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


 


“Accession
Letter” means a document substantially in the form set out in
Schedule 6 (Form of Accession Letter).


 


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


 


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


 


1

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


For the purposes of this definition:


 


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


 


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


 


2

















 


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


 


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


 


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


 


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


 


“Availability
Period” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Base
Currency” or “€” means euros.


 


3

















 


“Base
Currency Amount” means:


 


(a)                                   in relation to a Utilisation, the amount specified in the
Utilisation Request delivered by a Borrower for that Utilisation (or, if the
amount requested is not denominated in the Base Currency, that amount converted
into the Base Currency at the Agent’s Spot Rate of Exchange on the date which
is three Business Days before the Utilisation Date or, if later, on the date
the Agent receives the Utilisation Request and, in the case of a Letter of
Credit or Bank Guarantee, as adjusted under Clause 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 31 (Financial covenants).


 


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


 


(c)                                   freely withdrawable on demand;


 


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


 


4

















 


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


 


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


 


(f)                                     capable of being remitted to an Obligor.


 


“Cash Equivalent
Investments” means:


 


(g)                                  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;


 


(h)                                  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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Compliance
Certificate” means a certificate substantially in the form set out
in Schedule 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”
has the meaning given to it in Clause 31 (Financial covenants).


 


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


 


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


 


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


 


5
















 


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


 


“Disruption Event”
means either or both of:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)                                   land
(including land under water).


 


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


 


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


 


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


 


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


 


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


 


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


 


(a)                                  the
applicable Screen Rate; or


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


“Facility”
means Facility A or Facility B.


 


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


 


“Facility A
Commitment” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


“Facility B
Commitment” means:


 


(a)                                   in
relation to an Original Lender, the amount in the Base Currency set opposite
its name under the heading “Facility B Commitment” in Part II  of Schedule 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 16 (Ancillary Facilities)).


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(a)                                   moneys
borrowed;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


“Group” means:


 


(n)                                 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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


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


 


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


 


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


 


“JV Document”
means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Legal
Reservations” means:


 


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


 


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


 


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


 


11

















 


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


 


“Lender” means:


 


(a)                                  any
Original Lender; and


 


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


 


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


 


“Letter of Credit”
means a letter of credit, substantially in the form set out in Schedule 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).


 


12

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Material Subsidiary” means:


 


(e)                                   a Subsidiary of the
Company listed in the list of Material Subsidiaries provided to the Agent under
Clause 4.1 (Initial conditions precedent);


 


(f)                                     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);


 


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


 


(h)                                  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:


 


(vii)                            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


 


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


 


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


 


13

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Non-Group Entity”
has the meaning given to it in Clause 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 11.3 (Conditions
relating to Optional Currencies).


 


“Original
Financial Statements” means:


 


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


 


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


 


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


 


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


 


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


 


14
















 


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


 


“Party” means a
party to this Agreement.


 


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


 


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


 


“Permitted Acquisition” means:


 


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


 


(f)                                    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;


 


(g)                                 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


 


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


 


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


 


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


 


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


 


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


 


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


 


15

















 


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


 


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


 


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


 


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


 


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


 


16

















 


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


 


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


 


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


 


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


 


(i)                                     an acquisition of
shares or securities permitted pursuant to Clause 25.23 (Issue of
shares); and


 


(j)                                     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:


 


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


 


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


 


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


 


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


 


(o)                                 of assets to a
Permitted Joint Venture;


 


(p)                                 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;


 


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


 


(r)                                    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;


 


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


 


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


 


17

















 


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


 


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


 


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


 


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


 


(x)                                  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:


 


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


 


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


 


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


 


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


 


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


 


(dd)                          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;


 


(ee)                            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);


 


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


 


18

















 


(gg)                          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;


 


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


 


(ii)                                  the
Reborrowing Loan; or


 


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


 


“Permitted Guarantee” means:


 


(kk)                            any guarantee
arising under any Finance Document;


 


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


 


(mm)                      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);


 


(nn)                          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);


 


(oo)                          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);


 


(pp)                          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);


 


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


 


19

















 


(rr)                                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;


 


(ss)                            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;


 


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


 


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


 


(vv)                           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;


 


(ww)                      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;


 


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


 


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


 


“Permitted Hedging
Transaction” means:


 


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


 


(aaa)                      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


 


(bbb)                   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:


 


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


 


20

















 


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


 


(ddd)                   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;


 


(eee)                      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


 


(fff)                            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:


 


(ggg)                   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;


 


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


 


(iii)                             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;


 


(jjj)                             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;


 


(kkk)                    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;


 


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


 


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


 


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


 


21

















 


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


 


(ooo)                   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;


 


(ppp)                   the US JV Loan; or


 


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


 


“Permitted Security” means:


 


(rrr)                            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;


 


(sss)                      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;


 


(ttt)                            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;


 


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


 


(vvv)                   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;


 


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


 


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


 


22

















 


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


 


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


 


(xxx)                       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;


 


(yyy)                 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;


 


(zzz)                       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);


 


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


 


(bbbb)          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;


 


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


 


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


 


“Permitted Transaction” means:


 


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


 


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


 


23

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(iiii)                          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;


 


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


 


(kkkk)              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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


24
















 


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


 


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


 


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


 


(a)                                      its jurisdiction of incorporation;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


25

















 


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


 


“Screen Rate”
means:


 


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


 


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


 


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


 


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


 


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


 


“Security Property”
has the meaning given to it in Schedule 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 20 (Interest Periods)
in relation to Facility A.


 


“Shareholder Loan”
means:


 


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


 


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


 


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


 


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


 


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


 


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


 


“Specified Time”
means a time determined in accordance with Schedule 10 (Timetables).


 


26

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Syndication”
means general syndication of the Facilities.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


27

















 


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


 


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


 


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


 


“Transfer Certificate”
means a certificate substantially in the form set out in Schedule 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 31 (Financial covenants).


 


8.2                           Construction


 


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


 


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


 


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


 


28

















 


(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 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;


 


29

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8.3                           Third
Party Rights


 


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


 


30

















 


SECTION 2


 


The Facilities


 


9.                                 THE FACILITIES


 


9.1                           The
Facilities


 


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


 


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


 


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


 


9.2                           Finance
Parties’ rights and obligations


 


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


 


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


 


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


 


10.                           PURPOSE


 


10.1                     Purpose


 


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


 


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


 


10.2                     Monitoring


 


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


 


11.                           CONDITIONS OF UTILISATION


 


11.1                     Initial
conditions precedent


 


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


 


31

















 


(Conditions precedent)
in form and substance satisfactory to the Agent. The Agent shall notify the
Company and the Lenders promptly upon being so satisfied.


 


11.2                     Further
conditions precedent


 


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


 


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


 


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


 


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


 


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


 


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


 


11.3                     Conditions
relating to Optional Currencies


 


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


 


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


 


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


 


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


 


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


 


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


 


32

















 


11.4                     Maximum
number of Utilisations


 


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


 


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


 


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


 


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


 


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


 


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


 


33

















 


SECTION 3


 


UTILISATION


 


12.                           UTILISATION - LOANS


 


12.1                     Delivery
of a Utilisation Request


 


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


 


12.2                     Completion
of a Utilisation Request


 


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


 


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


 


(ii)                                   it
identifies the Facility to be utilised;


 


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


 


(iv)                               the
currency and amount of the Utilisation comply with Clause 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.


 


12.3                     Currency
and amount


 


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


 


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


 


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


 


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


 


(iii)                               if
the currency selected is any other Optional Currency, the minimum amount (and,
if required, integral multiple) specified by the Agent pursuant to paragraph
(b)(ii) of Clause 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; and


 


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


 


34
















 


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


 


	
  Borrower

  	
   

  	
  Aggregate amount of Facility A Loans (€)

  	
   

  
	
  Sachtleben Chemie

  	
   

  	
  152,500,000

  	
   

  
	
  Kemira Pigments

  	
   

  	
  53,800,000

  	
   

  
	
  Finnish HoldCo

  	
   

  	
  43,700,000

  	
   

  



 


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


 


12.4                     Lenders’
participation


 


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


 


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


 


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


 


12.5                     Cancellation
of Commitment


 


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


 


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


 


13.                           UTILISATION - LETTERS OF CREDIT AND BANK GUARANTEES


 


13.1                     General


 


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


 


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


 


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


 


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


 


(iv)                               “Renewal Request” means a written notice
delivered to the Agent in accordance with Clause 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.


 


35

















 


(b)                           Any
reference in this Agreement to:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


13.2                     Facility
B


 


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


 


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


 


A Borrower may request a Letter of Credit or Bank Guarantee
to be issued by delivery to the Agent of a duly completed Utilisation Request
substantially in the form of Part III of Schedule 3 (Utilisation Request - Letters of Credit and Bank
Guarantees) not later than the Specified Time.


 


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


 


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


 


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


 


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


 


(c)                                   the
currency and amount of the Letter of Credit or Bank Guarantee comply with
Clause 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 (for the avoidance of
doubt, the relevant 


 


36

















 


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


 


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


 


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


 


13.5                     Currency
and amount


 


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


 


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


 


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


 


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


 


(iii)                               if
the currency selected is any other Optional Currency, the minimum amount (and,
if required, integral multiple) specified by the Agent pursuant to paragraph
(b)(ii) of Clause 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.


 


13.6                     Issue
of Letters of Credit or Bank Guarantees


 


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


 


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


 


(i)                                      in
the case of a Letter of Credit or Bank Guarantee renewed in accordance with
Clause 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.


 


37

















 


13.7                     Renewal
of a Letter of Credit or Bank Guarantees


 


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


 


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


 


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


 


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


 


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


 


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


 


13.8                     Revaluation
of Letters of Credit and Bank Guarantees


 


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


 


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


 


14.                           LETTERS OF CREDIT AND BANK GUARANTEES


 


14.1                     Immediately
payable


 


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


 


14.2                     Assignments
and transfers


 


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


 


38

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14.4                     Claims
under a Letter of Credit or Bank Guarantee


 


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


 


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


 


(c)                            Each
Borrower acknowledges that the Issuing Bank:


 


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


 


39

















 


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


 


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


 


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


 


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


 


14.5                     Indemnities


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


40

















 


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


 


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


 


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


 


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


 


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


 


(vii)                           any
insolvency or similar proceedings.


 


14.6                     Rights
of contribution


 


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


 


14.7                     Role
of the Issuing Bank


 


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


 


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


 


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


 


(d)                           The
Issuing Bank may rely on:


 


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


 


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


 


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


 


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


 


(g)                           The
Issuing Bank is not responsible for:


 


41

















 


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


 


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


 


14.8                     Exclusion
of liability


 


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


 


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


 


14.9                     Credit
appraisal by the Lenders


 


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


 


14.10               Address
for notices


 


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


 


14.11               Amendments
and Waivers


 


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


 


15.                           OPTIONAL CURRENCIES


 


15.1                     Selection
of currency


 


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


 


15.2                     Unavailability
of a currency


 


If before the Specified Time on any Quotation Day:


 


42
















 


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


 


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


 


the Agent will give notice to the relevant Borrower to that
effect by the Specified Time on that day. In this event, any Lender that gives
notice pursuant to this Clause 8.2 will be required to participate in the Loan
in the Base Currency (in an amount equal to that Lender’s proportion of the
Base Currency Amount or, in respect of a Rollover Loan, an amount equal to that
Lender’s proportion of the Base Currency Amount of the Rollover Loan that is
due to be made) and its participation will be treated as a separate Loan
denominated in the Base Currency during that Interest Period.


 


16.                         ANCILLARY
FACILITIES


 


16.1                   Establishment of Ancillary Facilities


 


One
or more Ancillary Facilities may from time to time be established in favour of
one or more Borrowers in accordance with this Clause 9 by designating all or
part of the Facility B Commitment of a Lender as an Ancillary Commitment.


 


16.2                   Types of Ancillary Facility


 


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


 


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


 


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


 


16.3                   Request for Ancillary Facilities


 


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


 


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


 


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


 


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


 


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


 


43

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


16.4                   Grant of Ancillary Facility


 


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


 


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


 


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


 


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


 


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


 


16.5                   Adjustments to Facility B Commitment


 


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


 


(b)                         If and to the
extent that:


 


(i)                                    any Ancillary
Facility expires, or is cancelled (in whole or in part) in accordance with
Clause 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),


 


44

















 


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


 


16.6                   Terms of Ancillary Facilities


 


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


 


(i)                                    those terms shall
be consistent with this Clause 9 and the details set out in the Ancillary
Facility Request;


 


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


 


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


 


(iv)                             cancellation,
termination or enforcement of the Ancillary Facility shall only occur as
described in Clause 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.


 


16.7                   Limits on Ancillary Facilities


 


The
Company shall ensure that:


 


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


 


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


 


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


 


16.8                   Voluntary cancellation of Ancillary Facilities


 


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


 


45

















 


16.9                   Notice in respect of Ancillary Facilities


 


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


 


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


 


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


 


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


 


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


 


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


 


16.10             Ancillary Outstandings


 


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


 


46

















 


SECTION 4


 


REPAYMENT,
PREPAYMENT AND CANCELLATION


 


17.                         REPAYMENT


 


17.1                   Repayment
of Facility A Loans


 


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


 


	
  Facility A Repayment Date

  	
   

  	
  Facility A Repayment Instalment (€)

  	
   

  
	
  12 months after the date of this Agreement

  	
   

  	
  5,000,000

  	
   

  
	
  18 months after the date of this Agreement

  	
   

  	
  5,000,000

  	
   

  
	
  24 months after the date of this Agreement

  	
   

  	
  10,000,000

  	
   

  
	
  30 months after the date of this Agreement

  	
   

  	
  10,000,000

  	
   

  
	
  36 months after the date of this Agreement

  	
   

  	
  10,000,000

  	
   

  
	
  42 months after the date of this Agreement

  	
   

  	
  15,000,000

  	
   

  
	
  48 months after the date of this Agreement

  	
   

  	
  15,000,000

  	
   

  
	
  54 months after the date of this Agreement

  	
   

  	
  15,000,000

  	
   

  
	
  60 months after the date of this Agreement

  	
   

  	
  215,000,000

  	
   

  



 


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


 


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


 


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


 


17.2                   Repayment
of Facility B Loans


 


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


 


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


 


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


 


47

















 


17.3                   Repayment of Ancillary Facilities


 


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


 


18.                         PREPAYMENT AND CANCELLATION


 


18.1                   Illegality
in relation to a Lender or the Issuing Bank


 


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


 


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


 


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


 


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


 


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


 


18.2                   Illegality in relation to an Ancillary Lender


 


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


 


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


 


(b)                                upon the Agent
notifying the Company:


 


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


 


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


 


48

















 


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


 


18.3                   Change
of control


 


(a)                          If
a Change of Control Event occurs:


 


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


 


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


 


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


 


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


 


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


 


49

















 


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


 


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


 


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


 


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


 


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


 


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


 


18.4                   Voluntary
cancellation


 


The Company may, if it gives the Agent not less than 5
Business Days’ (or such shorter period as the Majority Lenders may agree) prior
notice, cancel the whole or any part (being a minimum amount of €5,000,000) of
an Available Facility. Any cancellation under this Clause 11.4 shall reduce the
Commitments of the Lenders rateably under that Facility.


 


18.5                   Mandatory prepayment - Net Sale Proceeds


 


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


 


18.6                   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.


 


18.7                   Mandatory
prepayment - Insurance Proceeds


 


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


 


18.8                   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.


 


18.9                   Excluded
proceeds


 


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


 


51

















 


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


 


18.10             Restriction
on upstream payments


 


(a)                          If
there is a requirement to make a mandatory prepayment pursuant to Clause 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).


 


18.11             Voluntary
prepayment of Facility A Loans


 


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


 


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


 


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


 


52
















 


18.12             Voluntary
prepayment of Facility B Utilisations


 


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


 


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


 


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


 


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


 


(a)                          If:


 


(i)                                    any
sum payable to any Lender or Ancillary Lender or the Issuing Bank by an Obligor
is required to be increased under paragraph (c) of Clause 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:


 


(iii)                              (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;


 


(iv)                             (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


 


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


 


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


 


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


 


53

















 


18.14             Restrictions


 


(a)                          Any
notice of cancellation or prepayment given by any Party under this Clause 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.


 


18.15             Clean Down


 


The
Company shall:


 


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


 


(i)                                 all Facility B
Loans; and


 


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


 


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


 


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


 


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


 


54

















 


SECTION 5


 


COSTS OF
UTILISATION


 


19.                         INTEREST


 


19.1                   Calculation
of interest


 


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


 


(a)                                   Margin;


 


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


 


(c)                                   Mandatory
Cost, if any.


 


19.2                   Payment
of interest


 


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


 


19.3                   Default
interest


 


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


 


19.4                   Notification
of rates of interest


 


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


 


19.5                   Adjustment of Margin


 


(a)                          Subject to this
Clause 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.


 


20.                         INTEREST PERIODS


 


20.1                   Selection
of Interest Periods


 


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


 


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


 


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

















 


20.2                   Changes
to Interest Periods


 


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


 


(b)                         If
the Agent makes any of the changes to an Interest Period referred to in this
Clause 13.2, it shall promptly notify the Company and the Lenders.


 


20.3                   Non-Business
Days


 


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


 


20.4                   Consolidation
and division of Facility A Loans


 


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


 


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


 


(ii)                                  end
on the same date; and


 


(iii)                               are
made to the same Borrower,


 


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


 


(b)                         Subject
to Clause 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.


 


21.                         CHANGES TO THE CALCULATION OF INTEREST


 


21.1                   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.


 


21.2                   Market
disruption


 


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


 


(i)                                     the
Margin;


 


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


 


58

















 


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


 


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


 


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


 


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


 


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


 


21.3                   Alternative
basis of interest or funding


 


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


 


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


 


21.4                   Break
Costs


 


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


 


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


 


22.                         FEES


 


22.1                   Commitment
fee


 


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


 


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


 


22.2                   Arrangement
fee


 


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


 


59

















 


22.3                   Agency
fee


 


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


 


22.4                   Security
Agency fee


 


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


 


22.5                   Issuing
Bank fee


 


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


 


22.6                   Ancillary Facility fees


 


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


 


60

















 


SECTION 6


 


ADDITIONAL
PAYMENT OBLIGATIONS


 


23.                         TAX GROSS UP AND INDEMNITIES


 


23.1                   Definitions


 


“Finnish Qualifying Lender”
means a Lender which is:


 


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


 


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


 


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


 


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


 


“Qualifying Lender”
means :


 


(iii)                               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;


 


(iv)                              a
Finnish Qualifying Lender; or


 


(v)                                 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

















 


(vi)                              is
treated as a resident of a Treaty State for the purposes of the Treaty; and


 


(vii)                           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.


 


23.2                     Tax
gross-up


 


(a)                          Each
Obligor shall make all payments to be made by it without any Tax Deduction,
unless a Tax Deduction is required by law.


 


(b)                         The
Company shall promptly upon becoming aware that an Obligor must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the
Agent on becoming so aware in respect of a payment payable to that Lender. If
the Agent receives such notification from a Lender it shall notify the Company
and that Obligor.


 


(c)                          If
a Tax Deduction is required by law to be made by an Obligor, the amount of the
payment due from that Obligor shall be increased to an amount which (after
making any Tax Deduction) leaves an amount equal to the payment which would
have been due if no Tax Deduction had been required.


 


(d)                         An
Obligor is not required to make an increased payment to a Lender under
paragraph (c) above for a Tax Deduction in respect of tax imposed by the
Federal Republic of Germany or the jurisdiction of incorporation of the
relevant Obligor from a payment of interest on a Loan, if on the date on which
the payment falls due:


 


(i)                                     the
payment could have been made to the relevant Lender without a Tax Deduction if
it was a Qualifying Lender, but on that date that Lender is not or has ceased
to be a Qualifying Lender other than as a result of any change after the date
it became a Lender under this Agreement in (or in the interpretation,
administration, or application of) any law or Treaty, or any published practice
or concession of any relevant taxing authority; or;


 


(ii)                                  the
relevant Lender is a Treaty Lender and the Obligor making the payment is able
to demonstrate that the payment could have been made to the Lender without the
Tax Deduction had that Lender complied with its obligations under paragraph (g) below.


 


(e)                          If
an Obligor is required to make a Tax Deduction, that Obligor shall make that
Tax Deduction and any payment required in connection with that Tax Deduction
within the time allowed and in the minimum amount required by law.


 


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(f)                            Within
thirty days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Obligor making that Tax Deduction shall
deliver to the Agent for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax Deduction has been
made or (as applicable) any appropriate payment paid to the relevant taxing
authority.


 


(g)                         A
Treaty Lender and each Obligor which makes a payment to which that Treaty
Lender is entitled shall co-operate in completing any procedural formalities
necessary for that Obligor to obtain authorisation to make that payment without
a Tax Deduction.


 


23.3                   Tax
indemnity


 


(a)                          The
Company shall (within three Business Days of demand by the Agent) pay to a Protected
Party an amount equal to the loss, liability or cost which that Protected Party
determines will be or has been (directly or indirectly) suffered for or on
account of Tax by that Protected Party in respect of a Finance Document.


 


(b)                         Paragraph
(a) above shall not apply:


 


(i)                                     with
respect to any Tax assessed on a Finance Party:


 


(A)                          under
the law of the jurisdiction in which that Finance Party is incorporated or, if
different, the jurisdiction (or jurisdictions) in which that Finance Party is
treated as resident for tax purposes;


 


(B)                            under
the law of the jurisdiction in which that Finance Party’s Facility Office is
located in respect of amounts received or receivable in that jurisdiction; or


 


(C)                            under
the laws of Germany pursuant to section 49 paragraph 1 no. 5 lit. c) aa) German
Income Tax Code (Einkommensteuergesetz) due to the
fact that a Facility is secured (directly or indirectly) by real estate located
in Germany (inländische Grundstücke) or domestic
rights treated as real property under German Civil Law (inländische
Rechte die den Vorschriften des Bürgerlichen Rechts über Grundstücke
unterliegen),


 


if that Tax is imposed on or calculated by reference to the
net income received or receivable (but not any sum deemed to be received or
receivable) by that Finance Party; or


 


(ii)                                  to
the extent a loss, liability or cost:


 


(A)                          is
compensated for by an increased payment under Clause 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.


 


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23.4                   Tax
Credit


 


                                          If
an Obligor makes a Tax Payment and the relevant Finance Party determines that:


 


(a)                                  a
Tax Credit is attributable either to an increased payment of which that Tax
Payment forms part, or to that Tax Payment; and


 


(b)                                 that
Finance Party has (directly or on an affiliated group basis) obtained, utilised
and retained that Tax Credit,


 


the Finance Party shall pay an amount to the Obligor which
that Finance Party determines will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not been
required to be made by the Obligor.


 


23.5                   Stamp
taxes


 


The Company shall pay and, within three Business Days of
demand, indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and other
similar Taxes payable in respect of any Finance Document.


 


23.6                   Value
added tax


 


(a)                            All
amounts set out, or expressed to be payable under a Finance Document by any
Party to a Finance Party which (in whole or in part) constitute the
consideration for VAT purposes shall be deemed to be exclusive of any VAT which
is chargeable on such supply, and accordingly, subject to paragraph (c) below,
if VAT is chargeable on any supply made by the Finance Party to any Party under
a Finance Document, that Party shall pay to the Finance Party (in addition to
and at the same time as paying the consideration) an amount equal to the amount
of the VAT (and such Finance Party shall promptly provide an appropriate VAT invoice
to such Party).


 


(b)                           If
VAT is chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and
any Party (the “Relevant Party”)
is required by the terms of any Finance Document to pay an amount equal to the
consideration for such supply to the Supplier (rather than being required to
reimburse the Recipient in respect of that consideration), such Party shall
also pay to the Supplier (in addition to and at the same time as paying such
amount) an amount equal to the amount of such VAT. The Recipient will promptly
pay to the Relevant Party an amount equal to any credit or repayment from the
relevant tax authority which it reasonably determines relates to the VAT
chargeable on that supply.


 


(c)                          Where
a Finance Document requires any Party to reimburse a Finance Party for any
costs or expenses, that Party shall also at the same time pay and indemnify the
Finance Party against all VAT incurred by the Finance Party in respect of the
costs or expenses to the extent that the Finance Party reasonably determines
that neither it nor any other member of any group of which it is a member for
VAT purposes is entitled to credit or repayment from the relevant tax authority
in respect of the VAT.


 


23.7                   German
Earnings Stripping Rules


 


Should a Borrower, which claims interest deductions in
Germany for German Tax purposes with regard to interest payments under this
Agreement require the assistance by the Finance Parties on the basis of sec. 4f
of the German Income Tax Act (Einkommensteuergesetz)
and sec. 8a of the German Corporate Income Tax Act (Körperschaftsteuergesetz)
in the form of the German


 


64

















 


Business Tax Reform Act 2008 (Unternehmensteuerreformgesetz
2008, published in the Federal Gazette, BGBI. I 2007, 1912 et seq.), with
regard to the application of the equity escape clause, the Finance Parties
shall, upon receipt of a request of the relevant Borrower (containing a
detailed proposal for the requested assistance) enter into good faith
negotiations as to what extent it is reasonably practical for the Finance
Parties to assist the Borrower in this respect. For the avoidance of doubt, no
Finance Party shall be obliged to release any Security, change this Agreement
or disclose information which is confidential under applicable statutory or
contractual banking secrecy rules.


 


24.                         INCREASED COSTS


 


24.1                   Increased
costs


 


(a)                          Subject
to Clause 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.


 


24.2                   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.


 


24.3                   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).


 


25.                         OTHER INDEMNITIES


 


25.1                   Currency
indemnity


 


(a)                          If
any sum due from an Obligor under the Finance Documents (a “Sum”), or any order, judgment or award
given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is
payable into another currency (the “Second
Currency”) for the purpose of:


 


(i)                                      making
or filing a claim or proof against that Obligor;


 


(ii)                                   obtaining
or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,


 


that Obligor shall as an independent obligation, within
three Business Days of demand, indemnify each Finance Party to whom that Sum is
due against any cost, loss or liability arising out of or as a result of the
conversion including any discrepancy between (A) the rate of exchange used
to convert that Sum from the First Currency into the Second Currency and (B) the
rate or rates of exchange available to that person at the time of its receipt
of that Sum.


 


(b)                         Each
Obligor waives any right it may have in any jurisdiction to pay any amount
under the Finance Documents in a currency or currency unit other than that in
which it is expressed to be payable.


 


25.2                   Other
indemnities


 


                                          The
Company shall (or shall procure that an Obligor will), within three Business
Days of demand, indemnify each Finance Party against any cost, loss or
liability incurred by that Finance Party as a result of:


 


(a)                                   the
occurrence of any Event of Default;


 


(b)                                  a
failure by an Obligor to pay any amount due under a Finance Document on its due
date, including without limitation, any cost, loss or liability arising as a
result of Clause 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.


 


25.3                   Indemnity
to the Agent and the Security Agent


 


                                        The
Company shall promptly indemnify the Agent and the Security Agent against any
cost, loss or liability incurred by the Agent or the Security Agent (acting
reasonably) as a result of:


 


(a)                                   investigating
any event which it reasonably believes is a Default; or


 


66

















 


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


 


26.                         MITIGATION BY THE LENDERS


 


26.1                   Mitigation


 


(a)                          Each
Finance Party shall, in consultation with the Company, take all reasonable
steps to mitigate any circumstances which arise and which would result in any
amount becoming payable under or pursuant to, or cancelled pursuant to, any of
Clause 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.


 


26.2                   Limitation
of liability


 


(a)                          The
Company shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clause 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.


 


27.                         COSTS AND EXPENSES


 


27.1                   Transaction
expenses


 


                                        The
Company shall promptly on demand pay the Agent, the Security Agent and the
Arranger the amount of all costs and expenses (including legal fees) reasonably
incurred by any of them in connection with the negotiation, preparation,
printing, execution and syndication of:


 


(a)                                  this
Agreement and any other documents referred to in this Agreement, subject to
agreed caps in respect of out of pocket expenses and legal fees; and


 


(b)                                 any
other Finance Documents executed after the date of this Agreement.


 


27.2                   Amendment
costs


 


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


 


27.3                   Enforcement
costs


 


The Company shall, within three Business Days of demand, pay
to each Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.


 


67

















 


27.4                   Security
Agent expenses


 


The Company shall promptly on demand pay the Security Agent
the amount of all costs and expenses (including legal fees) reasonably incurred
by it in connection with the administration or release of any Security created
pursuant to any Security Document.


 


27.5                   Undertaking
to pay


 


(a)                            The Company
undertakes to pay each Finance Party within three Business Days of demand an
amount equal to any liability, damages, loss, cost or expense (including legal
fees, costs and expenses) incurred by or awarded against that Finance Party or
any of its Affiliates or any of its (or its Affiliates’) directors, officers,
employees or agents (each a “Relevant Party”)
arising out of, in connection with or based on any actual or potential action,
claim, suit, investigation or proceeding arising out of, in connection with or
based on:


 


(i)                                      any Finance
Document;


 


(ii)                                   the arranging,
underwriting or syndication of the Facilities;


 


(iii)                                the use of
proceeds of any Loan; or


 


(iv)                               the use of any
Letter of Credit or Bank Guarantee,


 


except
to the extent such liability, damages, loss, cost or expense incurred or
awarded results from any breach by a Finance Party of a Finance Document which
is finally judicially determined to have resulted directly from the gross
negligence or wilful misconduct of that Relevant Party.


 


(b)                           The Company
undertakes to pay each Finance Party, within three Business Days of demand, an
amount equal to any cost or expense (including legal fees, costs and expenses)
incurred by any Relevant Party in connection with investigating, preparing,
pursuing or defending any action, claim, suit, investigation or proceeding
arising out of, in connection with or based on any of the above, whether or not
pending or threatened and whether or not any Relevant Party is a party.


 


(c)                            No Finance Party
shall have any duty or obligation, whether as fiduciary for any Relevant Party
or otherwise, to recover any payment made or required to be made under
paragraph (a).


 


(d)                           The Company agrees
that no Relevant Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Company or any of its Affiliates for or
in connection with anything referred to in paragraph (a) above except for
any such liability, damages, loss, cost or expense incurred by the Company that
results directly from any breach by that Relevant Party of any Finance Document
which is in each case finally judicially determined to have resulted directly
from the gross negligence or wilful misconduct of that Relevant Party.


 


(e)                            Notwithstanding
paragraph (d) above, no Relevant Party shall be responsible or have any
liability to the Company or any of its Affiliates or anyone else for
consequential losses or damages.


 


68

















 


SECTION 7


 


guarantee


 


28.                         GUARANTEE AND INDEMNITY


 


28.1                   Guarantee
and indemnity


 


Each Guarantor irrevocably and unconditionally jointly and
severally:


 


(a)                                   guarantees
to each Finance Party punctual performance by each Borrower of all that
Borrower’s obligations under the Finance Documents;


 


(b)                                  undertakes
with each Finance Party that whenever a Borrower does not pay any amount when
due under or in connection with any Finance Document, that Guarantor shall
immediately on demand pay that amount as if it was the principal obligor; and


 


(c)                                   agrees
with each Finance Party that if, for any reason, any amount claimed by a
Finance Party under this Clause 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.


 


28.2                   Continuing
guarantee


 


This guarantee is a continuing guarantee and will extend to
the ultimate balance of sums payable by any Obligor under the Finance
Documents, regardless of any intermediate payment or discharge in whole or in
part.


 


28.3                   Reinstatement


 


If as a result of insolvency or any similar event:


 


(a)                                   any
payment by an Obligor is avoided, reduced or must be restored; or


 


(b)                                  any
discharge or arrangement (whether in respect of the obligations of any Obligor
or any security for those obligations or otherwise) is made in whole or in part
on the basis of any payment, security or other thing which is avoided, reduced
or must be restored,


 


(i)                                 the
liability of each Obligor shall continue or be reinstated as if the payment,
discharge or arrangement had not occurred; and


 


(ii)                              each
Finance Party shall be entitled to recover the value or amount of that payment
or security from each Obligor, as if the payment, discharge or arrangement had
not occurred.


 


28.4                     Waiver
of defences


 


The obligations of each Guarantor under this Clause 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;


 


69

















 


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


 


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


 


(d)                                  any
incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of an Obligor or any other person;


 


(e)                                   any
amendment, novation, supplement, extension, restatement (however fundamental
and whether or not more onerous) or replacement of any Finance Document or any
other document or security, including any change in the purpose of, any
extension of or any increase in any facility or the addition of any new
facility under any Finance Document or other document or security;


 


(f)                                     any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security; or


 


(g)                                  any
insolvency or similar proceedings.


 


28.5                   Immediate
recourse


 


Each Guarantor waives any right it may have of first
requiring any Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from any
person before claiming from that Guarantor under this Clause 21.  This waiver applies irrespective of any law
or any provision of a Finance Document to the contrary.


 


28.6                   Appropriations


 


Until all amounts which may be or become payable by the
Obligors under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or agent on its
behalf) may:


 


(a)                                   refrain
from applying or enforcing any other moneys, security or rights held or
received by that Finance Party (or any trustee or agent on its behalf) in
respect of those amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same; and


 


(b)                                  hold
in an interest-bearing suspense account any moneys received from any Guarantor
or on account of any Guarantor’s liability under this Clause 21.


 


28.7                   Deferral
of Guarantors’ rights


 


Until all amounts which may be or become payable by the
Obligors under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Agent or, as the case may be, the
Security Agent otherwise directs, no Guarantor will exercise any rights which
it may have by reason of performance by it of its obligations under the Finance
Documents:


 


(a)                                   to
be indemnified by an Obligor;


 


70
















 


(b)                                 to
claim any contribution from any other guarantor of any Obligor’s obligations
under the Finance Documents; and/or


 


(c)                                  to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Finance Parties under the Finance Documents or
of any other guarantee or security taken pursuant to, or in connection with,
the Finance Documents by any Finance Party.


 


If a Guarantor receives any benefit, payment or distribution
in relation to such rights it shall hold that benefit, payment or distribution
to the extent necessary to enable all amounts which may be or become payable to
the Finance Parties by the Obligors under or in connection with the Finance
Documents to be repaid in full on trust for the Finance Parties and shall
promptly pay or transfer the same to the Agent or as the Agent may direct for
application in accordance with Clause 33 (Payment
mechanics) of this Agreement.


 


28.8                   Additional
security


 


This guarantee is in addition to and is not in any way
prejudiced by any other guarantee or security now or subsequently held by any
Finance Party.


 


28.9                   Release
of Guarantors’ right of contribution


 


If any Guarantor (a “Retiring Guarantor”)
ceases to be a Guarantor in accordance with the terms of the Finance Documents
for the purpose of any sale or other disposal of that Retiring Guarantor then
on the date such Retiring Guarantor ceases to be a Guarantor:


 


(a)                                  that
Retiring Guarantor is released by each other Guarantor from any liability
(whether past, present or future and whether actual or contingent) to make a
contribution to any other Guarantor arising by reason of the performance by any
other Guarantor of its obligations under the Finance Documents; and


 


(b)                                 each
other Guarantor waives any rights it may have by reason of the performance of
its obligations under the Finance Documents to take the benefit (in whole or in
part and whether by way of subrogation or otherwise) of any rights of the
Finance Parties under any Finance Document or of any other security taken pursuant
to, or in connection with, any Finance Document where such rights or security
are granted by or in relation to the assets of the Retiring Guarantor.


 


28.10             Preservation
of stated share capital of a German Guarantor


 


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


 


28.11             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.


 


74

















 


SECTION 8


 


REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT


 


29.                         REPRESENTATIONS


 


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


 


29.1                   Status


 


(a)                          It
is a corporation or limited liability company, duly incorporated and validly
existing under the law of its jurisdiction of incorporation.


 


(b)                         It
and each of its Subsidiaries has the power to own its assets and carry on its
business as it is being conducted.


 


29.2                   Binding
obligations


 


                                        The
obligations expressed to be assumed by it in each Finance Document are legal,
valid, binding and enforceable, subject to the Legal Reservations and the
Perfection Requirements.


 


29.3                   Non-conflict
with other obligations


 


                                        The
entry into and performance by it of, and the transactions contemplated by, the
Finance Documents do not and will not conflict with:


 


(a)                                   any
law or regulation applicable to it;


 


(b)                                  its
or any of its Subsidiaries’ constitutional documents; or


 


(c)                                   any
agreement or instrument binding upon it or any of its Subsidiaries or any of
its or any of its Subsidiaries’ assets to an extent which has or is reasonably
likely to have a Material Adverse Effect,


 


nor (except as provided in any Security Document) result in
the existence of, or oblige it to create, any Security over any of its assets
which are expressed to be the subject of any Security Document.


 


29.4                   Power
and authority


 


It has the power to enter into, perform and deliver, and has
taken all necessary action to authorise its entry into, performance and
delivery of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.


 


29.5                   Validity
and admissibility in evidence


 


                                        All
Authorisations required:


 


(a)                                   to
enable it lawfully to enter into, exercise its rights and comply with its obligations
in the Finance Documents to which it is a party;


 


(b)                                  to
make the Finance Documents to which it is a party admissible in evidence in its
jurisdiction of incorporation; and


 


(c)                                   subject
to the Perfection Requirements, to enable it to create the Security to be
created by it pursuant to any Security Document and to ensure that such
Security has the priority and ranking it is expressed to have,


 


75

















 


have been obtained or effected and are in full force and
effect or will be obtained or effected and will be in full force and effect no
later than the date of first utilisation of any Facility.


 


29.6                     Governing
law and enforcement


 


(a)                            Subject
to the Legal Reservations, the choice of English law as the governing law of
the Finance Documents will be recognised and enforced in its jurisdiction of
incorporation.


 


(b)                           Subject
to the Legal Reservations, any judgment obtained in England in relation to a
Finance Document will be recognised and enforced in its jurisdiction of
incorporation.


 


29.7                     Deduction
of Tax


 


At the date of this Agreement, it is not required to make
any deduction for or on account of Tax from any payment it may make under any
Finance Document.


 


29.8                     No
filing or stamp taxes


 


Under the law of its jurisdiction of incorporation it is not
necessary that the Finance Documents be filed, recorded or enrolled with any
court or other authority in that jurisdiction or that any stamp, registration
or similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents.


 


29.9                     No
default


 


(a)                            No
Event of Default is continuing or might reasonably be expected to result from
the making of any Utilisation.


 


(b)                           No
other event or circumstance is outstanding which constitutes a default under
any other agreement or instrument which is binding on it or any of its
Subsidiaries or to which its (or any of its Subsidiaries’) assets are subject
which has or is reasonably likely to have a Material Adverse Effect.


 


29.10             Information
Memorandum


 


(a)                          Any
factual information provided by or on behalf of  any member of the Group for the purposes
of the Information Memorandum was true and accurate in all material respects as
at the date it was provided or as at the date (if any) at which it is stated.


 


(b)                         The
financial projections contained in the Information Memorandum have been
prepared on the basis of recent historical information and on the basis of
reasonable assumptions.


 


(c)                          Nothing
has occurred or been omitted from the Information Memorandum and no information
has been given or withheld that results in the information contained in the
Information Memorandum being untrue or misleading in any material respect.


 


29.11             Financial
statements


 


(a)                            Its
Original Financial Statements were prepared in accordance with GAAP
consistently applied.


 


(b)                           Its
Original Financial Statements fairly represent its financial condition and
operations (consolidated in the case of the Company) as at the end of and for
the relevant financial year.


 


(c)                          There
has been no material adverse change in its business or financial condition (or
the business or consolidated financial condition of the Group, in the case of
the Company) since the date to which its Original Financial Statements were
drawn up.


 


76

















 


29.12               Pari
passu ranking


 


Without limiting Clause 22.17 (Security)
below, its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated creditors,
except for obligations mandatorily preferred by law applying to companies
generally.


 


29.13               No
proceedings pending or threatened


 


(a)                            No
litigation, arbitration or administrative proceedings of or before any court,
arbitral body or agency which, if adversely determined might reasonably be
expected to have a Material Adverse Effect have (to the best of its knowledge
and belief) been started or threatened against it or any of its Subsidiaries.


 


(b)                           Paragraph
(a) shall not apply to any litigation, arbitration or administrative
proceedings which are vexatious or frivolous.


 


29.14               Environmental
laws and licences


 


                                          It
and each of its Subsidiaries has:


 


(a)                                   complied
with all Environmental Laws to which it may be subject;


 


(b)                                  obtained
all Environmental Licences required in connection with its business; and


 


(c)                                   complied
with the terms of those Environmental Licences,


 


in each case where failure to do so has, or is reasonably
likely to have a Material Adverse Effect.


 


29.15               Environmental
releases


 


                                          No:


 


(a)                                   property
currently or previously owned, leased, occupied or controlled by it or any of
its Subsidiaries (including any offsite waste management or disposal location
utilised by it or any of its Subsidiaries) is contaminated with any Hazardous
Substance; and


 


(b)                                  discharge,
release, leaching, migration or escape of any Hazardous Substance into the
Environment has occurred or is occurring on, under or from that property,


 


in each case in circumstances where this has or is
reasonably likely to have a Material Adverse Effect.


 


29.16               Solvency


 


No:


 


(a)                                   corporate
action, legal proceeding or other procedure or step described in Clause 25.7 (Insolvency proceedings); or


 


(b)                                  creditors’
process described in Clause 26.8 (Creditors’
process),


 


has been started in respect of it or any of its
Subsidiaries.


 


29.17               Security


 


(a)                            Subject to any
applicable Perfection Requirements, each Security Document creates (or, once
entered into, will create) in favour of the Security Agent for the benefit of
the Finance Parties, the Security which it is expressed to create fully
perfected and with the ranking and priority it is expressed to have.


 


77

















 


(b)                           The constitutional
documents of any member of the Group and the JV Documents do not restrict or
inhibit in any manner any transfer of any shares of any member of the Group
which are expressed to be subject to any Security under any Security Document
except for the articles of association of Sachtleben Chemie from which
restrictions will be removed in accordance with the terms of the pledge
agreement relating to the shares of Sachtleben Chemie.


 


29.18             Legal and beneficial ownership


 


(a)                            It and each of its
Subsidiaries is the absolute legal and beneficial owner of all the assets over
which it purports to create Security pursuant to any Security Document, free
from any Security other than Permitted Security.


 


(b)                           Paragraph (a) shall
not apply to any assets which are subject to the German Transfer Agreement and
are not owned by Sachtleben Chemie.


 


29.19             Assets


 


It
and each of its Subsidiaries has good and marketable title to, or valid leases
or licences of, or is otherwise entitled to use (in each case, on arm’s length
terms), all material assets necessary for the conduct of its business as it is
being, and is proposed to be, conducted.


 


29.20             JV
Documents


 


(a)                          The JV Documents:


 


(i)                                   contain all the
terms of the arrangements between the Owners relating to the Ti02 Joint Venture
(and/or any of their respective Affiliates) and any Holding Company of the
Company and/or any member of the Group (and/or any of their respective
Affiliates);


 


(ii)                                are or, on the
date of the first Utilisation Request, will be in full force and effect; and


 


(iii)                             have not been
amended from the form in which they were delivered or waived (in whole or in
part) and no consent has been given thereunder, save for any which do not
materially and adversely affect the interests of the Lenders or have been
approved in writing by the Agent.


 


(b)                         Neither it nor any
of its Subsidiaries is in, or aware of any, material breach of or material
default under any JV Document.


 


29.21             Pensions


 


(a)                          No member of the
Group has any material liability in respect of any pension scheme and there are
no circumstances which would give rise to such a liability other than as
disclosed in the Information Memorandum or otherwise to the Agent prior to the
date of this Agreement.


 


(b)                         Each member of the
Group is in compliance in all material respects with all applicable material
laws and material contracts relating to and the governing provisions of the
pension schemes maintained by or for the benefit of any member of the Group
and/or any of its employees.


 


29.22             Insurances


 


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


 


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(b)                           No event or
circumstance has occurred, and there has been no failure to disclose a fact,
which would entitle any insurer to reduce or avoid its liability under any such
insurance where such event, circumstance or failure would reasonably be
expected to have a Material Adverse Effect.


 


29.23            Repetition


 


The Repeating Representations (and, in the case of paragraph
(b) below, the representations set out in Clauses 29.5 (Validity and admissibility in evidence)
and 29.8 (No filing or stamp taxes))
are deemed to be made by each Obligor by reference to the facts and
circumstances then existing on:


 


(a)                                   the
date of each Utilisation Request and the first day of each Interest Period; and


 


(b)                                  in
the case of an Additional Obligor, the day on which the company becomes (or it
is proposed that the company becomes) an Additional Obligor.


 


The representations and warranties set out in Clause 22.10 (Information Memorandum) are deemed to be made by each
Obligor on the date on which the Information Memorandum is approved by the
Company and on the Syndication Date subject to, in each case, any disclosures
made by the Company prior thereto.


 


30.                        INFORMATION UNDERTAKINGS


 


The undertakings in this Clause 30 remain in force from the
date of this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.


 


30.1                  Financial
statements


 


The Company shall supply to the Agent in sufficient copies
for all the Lenders:


 


(a)                                   as
soon as the same become available, but in any event within 180 days after the
end of each of its financial years and beginning with the financial year ending
31 December 2008:


 


(i)                                  its
audited consolidated financial statements for that financial year; and


 


(ii)                               the
unaudited financial statements of each Obligor for that financial year; and


 


(b)                                  as
soon as the same become available, but in any event within 45 days after the
end of each Financial Quarter and beginning with the Financial Quarter ending
on 30 September 2008:


 


(i)                                  its
consolidated financial statements for that Financial Quarter; and


 


(ii)                               the
financial statements of each Obligor for that Financial Quarter.


 


30.2                  Compliance
Certificate


 


(a)                            The
Company shall supply to the Agent, with each set of financial statements
delivered pursuant to paragraph (a)(i) or (b)(i) of Clause 30.1 (Financial statements), a Compliance
Certificate setting out (in reasonable detail) computations as to compliance
with Clause 31 (Financial covenants)
as at the date as at which those financial statements were drawn up.


 


(b)                           If
required to be delivered with the financial statements delivered pursuant to
paragraph (a)(i) of Clause 23.1 (Financial statements),
the Compliance Certificate shall also set out the Material 


 


79

















 


Subsidiaries and
(in reasonable detail) computations for the determination of which members of
the Group are Material Subsidiaries.


 


(c)                            Each
Compliance Certificate shall be signed by two directors of the Company and, if
required to be delivered with the financial statements delivered pursuant to
paragraph (a)(i) of Clause 30.1 (Financial
statements), shall be reported on by the Company’s auditors in the
form reasonably required by the Agent.


 


30.3                  Requirements
as to financial statements


 


(a)                            Each
set of financial statements delivered by the Company pursuant to Clause 30.1 (Financial statements) shall be certified
by a director of the relevant company as fairly representing its (or, as the
case may be, its consolidated) financial condition and operations as at the end
of and for the period in relation to which those financial statements were
drawn up.


 


(b)                           The
Company shall procure that each set of financial statements delivered pursuant
to Clause 30.1 (Financial statements)
is prepared using the Applicable Accounting Principles, unless, in
relation to any set of financial statements, it notifies the Agent that there
has been a change in GAAP or the relevant accounting practices or reference
periods and its auditors (or, if appropriate, the auditors of the Obligor)
deliver to the Agent:


 


(i)                                     a description of
any change necessary for the relevant financial statements to reflect the
Applicable Accounting Principles; and


 


(ii)                                  sufficient
information, in form and substance as may be reasonably required by the Agent,
to enable the Lenders to determine whether Clause 24 (Financial covenants) has been complied
with, to determine any other relevant matter set out in this Agreement and/or
to make an accurate comparison between the financial position indicated in
those financial statements and that Obligor’s Original Financial Statements.


 


Any
reference in this Agreement to those financial statements shall be construed as
a reference to those financial statements as adjusted to reflect the Applicable
Accounting Principles.


 


(c)                            If the Company
notifies the Agent of a change in accordance with paragraph (b) above, the
Company and the Agent shall enter into negotiations in good faith with a view
to agreeing any amendments to this Agreement which are necessary as a result of
the change.


 


30.4                  Information:
miscellaneous


 


The Company shall supply to the Agent (in sufficient copies
for all the Lenders, if the Agent so requests):


 


(a)                                  all
documents dispatched by the Company to its creditors generally at the same time
as they are dispatched;


 


(b)                                  promptly
upon becoming aware of them, the details of any litigation, arbitration or
administrative proceedings which are current, threatened or pending against any
member of the Group, and which might, if adversely determined, reasonably be
expected to have a Material Adverse Effect (other than any litigation,
arbitration or administrative proceedings which are vexatious or frivolous);
and


 


80

















 


(c)                                   promptly,
such further information regarding the financial condition, business and
operations of any member of the Group as any Finance Party (through the Agent)
may reasonably request.


 


30.5                  Notification
of default


 


(a)                            Each
Obligor shall notify the Agent of any Default (and the steps, if any, being
taken to remedy it) promptly upon becoming aware of its occurrence (unless that
Obligor is aware that a notification has already been provided by another
Obligor).


 


(b)                           Promptly
upon a request by the Agent, the Company shall supply to the Agent a
certificate signed by two of its directors or senior officers on its behalf
certifying that no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy it).


 


30.6                  “Know
your customer” checks


 


(a)                            If:


 


(i)                                     the
introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this Agreement;


 


(ii)                                  any
change in the status of an Obligor after the date of this Agreement; or


 


(iii)                               a
proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to such
assignment or transfer,


 


obliges the Agent or any Lender (or, in the case of
paragraph (iii) above, any prospective new Lender) to comply with “know
your customer” or similar identification procedures in circumstances where the
necessary information is not already available to it, each Obligor shall
promptly upon the request of the Agent or any Lender supply, or procure the supply
of, such documentation and other evidence as is reasonably requested by the
Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in
the case of the event described in paragraph (iii) above, on behalf of any
prospective new Lender) in order for the Agent, such Lender or, in the case of
the event described in paragraph (iii) above, any prospective new Lender
to carry out and be satisfied it has complied with all necessary “know your
customer” or other similar checks under all applicable laws and regulations
pursuant to the transactions contemplated in the Finance Documents.


 


(b)                           Each
Lender shall promptly upon the request of the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Agent (for itself) in order for the Agent to carry out and be satisfied it
has complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations pursuant to the transactions
contemplated in the Finance Documents.


 


(c)                            The
Company shall, by not less than 10 Business Days’ prior written notice to the
Agent, notify the Agent (which shall promptly notify the Lenders) of its
intention to request that one of its Subsidiaries becomes an Additional Obligor
pursuant to Clause 35 (Changes to the
Obligors).


 


(d)                           Following
the giving of any notice pursuant to paragraph (c) above, if the accession
of such Additional Obligor obliges the Agent or any Lender to comply with “know
your customer” or similar identification procedures in circumstances where the
necessary information is not already 


 


81

















 


available to
it, the Company shall promptly upon the request of the Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself or on behalf of any Lender) or
any Lender (for itself or on behalf of any prospective new Lender) in order for
the Agent or such Lender or any prospective new Lender to carry out and be
satisfied it has complied with all necessary “know your customer” or other
similar checks under all applicable laws and regulations pursuant to the
accession of such Subsidiary to this Agreement as an Additional Obligor.


 


31.                        FINANCIAL COVENANTS


 


31.1                  Financial
condition


 


The Company shall ensure that:


 


(a)                                  the
ratio of Net Debt on each Quarter Date in each period set out in the table
below to EBITDA for the Relevant Period ending on that Quarter Date will not
exceed the ratio set out in the relevant column in the table below opposite
that period;


 


(b)                                 the
ratio of EBITDA to Net Interest Costs for each Relevant Period ending on a
Quarter Date in each period set out in the table below will not be less than
the ratio set out in the relevant column in the table below opposite that
period; and


 


(c)                                  the
ratio of Cash Generated for Financing to Debt Service for each Relevant Period
ending on a Quarter Date in each period set out in the table below will not be
less than the ratio set out in the relevant column in the table below opposite
that period.


 


	
  Period

  	
   

  	
  Net Debt: EBITDA

  	
   

  	
  EBITDA: Net Interest

  Costs

  	
   

  	
  Cash Generated for

  Financing: Debt

  Service

  	
   

  
	
  30 September 2008 to and including 31
  December 2008

  	
   

  	
  4.00:1.00

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31 December 2008

  	
   

  	
   

  	
   

  	
  2.75:1.00

  	
   

  	
  1.00:1.00

  	
   

  
	
  1 January 2009 to and including 31
  December 2009

  	
   

  	
  4.00:1.00

  	
   

  	
  3.00:1.00

  	
   

  	
  1.00:1.00

  	
   

  
	
  1 January 2010 to and including 31
  December 2010

  	
   

  	
  3.50:1.00

  	
   

  	
  3.50:1.00

  	
   

  	
  1.10:1.00

  	
   

  
	
  Thereafter

  	
   

  	
  3.00:1.00

  	
   

  	
  4.00:1.00

  	
   

  	
  1.10:1.00

  	
   

  



 


31.2                  Definitions


 


In this Clause 24.2:


 


“Capital Expenditure”
means any expenditure or obligation (other than expenditure or obligations in
respect of Permitted Acquisitions and Permitted Joint Ventures) in respect of expenditure
which, in accordance with the Accounting Principles, is treated as capital


 


82

















 


expenditure (and including the capital element of any
expenditure or obligation incurred in connection with a Finance Lease).


 


“Cash Generated for
Financing” means, in respect of any Relevant Period (the “Current Relevant Period”), EBITDA for that Relevant Period
after:


 


(a)                                  adding
the amount of any decrease (and deducting the amount of any increase) in
Working Capital for that Relevant Period;


 


(b)                                 adding
the amount of any cash receipts (and deducting the amount of any cash payments)
during that Relevant Period in respect of any Exceptional Items not already
taken account of in calculating EBITDA for any Relevant Period (other than, in
the case of cash receipts, Net Sale Proceeds or Insurance Proceeds applied in
prepayment of the Facilities);


 


(c)                                  adding
the amount of any cash receipts during that Relevant Period in respect of any
Tax rebates or credits and deducting the amount actually paid or due and
payable in respect of Taxes during that Relevant Period by any member of the
Group;


 


(d)                                 adding
(to the extent not already taken into account in determining EBITDA) the amount
of any dividends or other profit distributions received in cash by any member
of the Group during that Relevant Period from any entity which is itself not a
member of the Group and deducting (to the extent not already deducted in
determining EBITDA) the amount of any dividends paid in cash during the
Relevant Period to minority shareholders in members of the Group;


 


(e)                                  adding
the amount of any increase in provisions, other non-cash debits and other
non-cash charges (which are not Current Assets or Current Liabilities) and
deducting the amount of any non-cash credits (which are not Current Assets or
Current Liabilities) in each case to the extent taken into account in
establishing EBITDA;


 


(f)                                    deducting
the amount of any Capital Expenditure actually made (or due to be made) during
that Relevant Period by any member of the Group and the aggregate of any cash
consideration paid for, or the cash cost of, any Permitted Acquisitions and
Permitted Joint Ventures except (in the case) to the extent funded from;


 


(i)                                 Cash
Generated for Financing in the Relevant Period ending immediately prior to the
first day of the Current Relevant Period (the “Previous
Relevant Period”) less Debt Service for the Previous Relevant
Period;


 


(ii)                              Net
Sale Proceeds or Insurance Proceeds permitted to be retained for this purpose;
or


 


(iii)                           new
equity or Financial Indebtedness subordinated to the Facilities on terms
acceptable to the Majority Lenders (acting reasonably) and received from a
person which is not a member of the Group; and


 


(g)                                 deducting
the amount of any cash costs of Pension Items during that Relevant Period to
the extent not taken into account in establishing EBITDA,


 


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and so that no amount shall be added (or deducted) more than
once and there shall be excluded the effect of all cash movements associated
with the JV Costs up to an amount not exceeding €8,000,000.


 


“Current Assets”
means the aggregate (on a consolidated basis) of all inventory, work in
progress, trade and other receivables of each member of the Group including
prepayments in relation to operating items and sundry debtors (but excluding
Cash and Cash Equivalent Investments) maturing within twelve months from the
date of computation but excluding
amounts in respect of:


 


(h)                                  receivables
in relation to Tax;


 


(i)                                      Exceptional
Items and other non-operating items;


 


(j)                                      insurance
claims; and


 


(k)                                   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:


 


(l)                                      liabilities
for Debt, other Financial Indebtedness or pensions and Interest Expenses;


 


(m)                                liabilities
for Tax;


 


(n)                                  Exceptional
Items and other non-operating items; and


 


(o)                                  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:


 


(p)                                 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);


 


(q)                                 any
guarantee in respect of Financial Indebtedness to the extent such guarantee is
not classified as a borrowing under IFRS; and


 


(r)                                    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:


 


(s)                                   Interest
Expenses for that Relevant Period;


 


(t)                                     the
aggregate of all scheduled repayments of Debt falling due during that Relevant
Period but excluding:


 


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(i)                                 any
amounts falling due under any overdraft or revolving facility (including,
without limitation, Facility B and any Ancillary Facility) and which were
available for simultaneous redrawing according to the terms of that facility;


 


(ii)                              any
such obligations owed to any member of the Group; and


 


(iii)                           any
prepayment of Debt existing on the date of this Agreement which is required to
be repaid under the terms of this Agreement; and


 


(u)                                  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):


 


(v)                                 before deducting any Net Interest Expenses and
other finance charges in respect of Financial Indebtedness;


 


(w)                               not including
any accrued interest owing to any member of the Group;


 


(x)                                   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);


 


(y)                                 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);


 


(z)                                   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;


 


(aa)                            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);


 


(bb)                          before taking into account any unrealised gains or
losses on any derivative instrument;


 


(cc)                            before taking into account any gain or loss on the
disposal or revaluation of assets (other than in the ordinary course of
trading);


 


(dd)                          before
taking into account any Pension Items;


 


(ee)                            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


 


(ff)                                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:


 


(gg)                          including any upfront fees or costs
which are not capitalised;


 


(hh)                          including the interest (but not the
capital) element of payments in respect of Finance Leases;


 


(ii)                                 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;


 


(jj)                                 including the amortisation of any
capitalised finance payments; and


 


(kk)                           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:


 


(ll)                                  excluding any such obligations to any
other member of the Group;


 


(mm)                      including,
in the case of Finance Leases only, their capitalised value; and


 


(nn)                          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.


 


31.3                   Financial
covenant calculations


 


(a)                                   Capital
Expenditure, Cash Generated for Financing, Current Assets, Current Liabilities,
Debt, Debt Service, EBITDA, Exceptional Items, Interest Expenses, Net Interest
Expenses, Net Debt and Working Capital shall be calculated and interpreted on a
consolidated basis in accordance with the Applicable Accounting Principles,
unless expressly provided to the contrary, and shall be expressed in euro.


 


(b)                                  Capital
Expenditure, Cash Generated for Financing, EBITDA, Interest Expenses, Net Interest
Expenses, Net Debt and Working Capital shall be determined (except as needed to
reflect the terms of this Clause 31) from the financial statements of the Group
and Compliance Certificates delivered under Clause 30.1 (Financial
statements), and Clause 30.2 (Compliance Certificate).


 


(c)                                   For
the purpose of this Clause 31, an amount outstanding or repayable on a
particular day in a currency other than euro shall on that day be taken into
account in its euro equivalent at the rate of exchange that would have been
used had an audited consolidated balance sheet of the Group been prepared as at
that day in accordance with the Applicable Accounting Principles.


 


(d)                                  For
the purpose of this Clause 31, no item shall be included or excluded more than
once in any calculation.


 


(e)                                   To
the extent that any period prior to the date of first Utilisation of any
Facility is included in any Relevant Period in Clause 31.1 (Financial condition):


 


(i)                                 Net
Interest Expenses for the period from the beginning of the Relevant Period
until the date of first Utilisation of any Facility shall be calculated on a
pro forma basis on the basis of the actual Net Interest Expenses from the date
of first Utilisation of any Facility until the end of the Relevant Period; and


 


(ii)                             EBITDA
for the period from the beginning of the Relevant Period until the date of
first Utilisation of any Facility shall be the actual earnings before interest,
tax, depreciation and amortisation calculated using the same principles set out
in this Clause 31 for the calculation of EBITDA.


 


(f)                                     The
Company shall provide the Agent with the financial information and pro forma
computations necessary to calculate these items.


 


(g)                                  If
any Permitted Acquisition occurs during a Relevant Period in relation to a
business or company and the underlying business or company is not subsequently
disposed of 


 


87

















 


during that
Relevant Period (an “Acquired Entity”),
the Acquired Entity’s earnings before interest, tax, depreciation and
amortisation and cash generated for financing (calculated using the principles
set out in this Clause 31 for the calculation of EBITDA and Cash Generated for
Financing, respectively) in respect of the part of the Relevant Period before
its acquisition shall be included in determining EBITDA and Cash Generated for
Financing for that Relevant Period.


 


(h)                                  If
any Permitted Disposal occurs during a Relevant Period in relation to a
business or company (a “Sold Entity”),
the Sold Entity’s earnings before interest, tax, depreciation and amortisation
and cash generated for financing (calculated using the principles set out in
this Clause 31 for the calculation of EBITDA and Cash Generated for Financing,
respectively) in respect of the part of the Relevant Period before its disposal
shall be excluded in determining EBITDA and Cash Generated for Financing for
that Relevant Period.


 


(i)                                      Net
Interest Expenses and Debt Service shall be adjusted to reflect the assumption
of debt relating to any Acquired Entity or repayment of debt relating to any
Sold Entity.


 


32.                         GENERAL UNDERTAKINGS


 


The undertakings in this Clause 32 remain in force from the
date of this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.


 


32.1                   Authorisations


 


(a)                            Each
Obligor shall promptly:


 


(i)                                      obtain,
comply with and do all that is necessary to maintain in full force and effect;
and


 


(ii)                                   on
request by the Agent, supply certified copies to the Agent of,


 


any Authorisation required under any law or regulation of
its jurisdiction of incorporation to enable it to perform its obligations under
the Finance Documents and to ensure, subject to the Legal Reservations, the
legality, validity, enforceability or admissibility in evidence in its jurisdiction
of incorporation of any Finance Document.


 


32.2                   Compliance
with laws


 


Each Obligor shall comply in all respects with all laws to
which it is subject, if failure so to comply would be reasonably expected to
have a Material Adverse Effect.


 


32.3                   Negative
pledge


 


(a)                            No
Obligor shall (and the Company shall ensure that no other member of the Group
will) create or permit to subsist any Security or Quasi Security over any of
its assets.


 


(b)                           Paragraph
(a) does not apply to any Security or Quasi Security which is Permitted
Security.


 


32.4                   Disposals


 


(a)                            No
Obligor shall (and the Company shall ensure that no other member of the Group
will) enter into a single transaction or a series of transactions (whether
related or not and whether voluntary or involuntary) to sell, lease, transfer
or otherwise dispose of any asset.


 


(b)                           Paragraph
(a) above does not apply to any sale, lease, transfer or other disposal
which is a Permitted Disposal or a Permitted Transaction.


 


88

















 


32.5                   Merger


 


No Obligor shall (and the Company shall ensure that no other
member of the Group will) enter into any amalgamation, demerger, merger or
corporate reconstruction without the prior written consent of the Majority
Lenders other than a Permitted Transaction.


 


32.6                   Change
of business


 


The Company shall procure that no substantial change is made
to the general nature of the business of the Group taken as a whole from that
carried on at the date of this Agreement.


 


32.7                   Insurance


 


Each Obligor shall (and the Company shall ensure that each
other member of the Group will) maintain insurances on and in relation to its
business and assets with reputable underwriters or insurance companies against
those risks, and to the extent, usually insured against by prudent companies
located in the same or a similar location and carrying on a similar business.


 


32.8                   Environmental
undertakings


 


Each Obligor shall (and the Company shall ensure that each
other member of the Group will):


 


(a)                                   comply
with all Environmental Laws to which it is subject;


 


(b)                                  obtain
all Environmental Licences required in connection with its business; and


 


(c)                                   comply
with the terms of all those Environmental Licences,


 


in each case where failure to do has or is reasonably likely
to have a Material Adverse Effect.


 


32.9                   Environmental
claims


 


Each Obligor shall (and the Company shall ensure that each
other member of the Group will) promptly notify the Agent of any claim, notice
or other communication received by it in respect of any actual or alleged
breach of or liability under Environmental Law which, if substantiated, has or
is reasonably likely to have a Material Adverse Effect.


 


32.10             Assets


 


Each
Obligor shall (and the Company shall ensure that each other member of the Group
will) maintain in good working order and condition (ordinary wear and tear
excepted) all its assets necessary for the conduct of its business as conducted
from time to time.


 


32.11             Pari passu


 


Each
Obligor shall ensure that its obligations under the Finance Documents rank at
all times at least pari passu in
right of priority and payment with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by law
applying to companies generally.


 


32.12             Loans or credit


 


(a)                            No Obligor shall
(and the Company shall ensure that no other member of the Group will) be a
creditor in respect of any Financial Indebtedness.


 


(b)                           Paragraph (a) above
does not apply to a Permitted Loan or a Permitted Transaction.


 


32.13             Guarantees


 


(a)                            No Obligor shall
(and the Company shall ensure that no other member of the Group will) issue or
allow to remain outstanding any guarantee in respect of any liability or
obligation of any person.


 


89

















 


(b)                           Paragraph (a) above
does not apply to a Permitted Guarantee.


 


32.14             Financial
Indebtedness


 


(a)                            No Obligor shall
(and the Company shall ensure that no other member of the Group will) incur (or
agree to incur) or allow to remain outstanding any Financial Indebtedness.


 


(b)                           Paragraph (a) above
does not apply to Financial Indebtedness that is Permitted Financial
Indebtedness or a Permitted Transaction.


 


32.15             Restricted
payments


 


The
Company shall not:


 


(i)                                     declare, pay or
make any dividend or other payment or distribution of any kind on or in respect
of any of its shares; or


 


(ii)                                  reduce, return,
purchase, repay, cancel or redeem any of its shares,


 


provided
that the Company may take such action at any time when the ratio of Net Debt on
the most recent Quarter Date to EBITDA for the Relevant Period ending on that
Quarter Date is less than or equal to 2.50:1.00 and that immediately after any
such action is taken, such ratio will be less than or equal to 2.50:1.00.


 


32.16             Acquisitions


 


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


 


(i)                                     acquire any share
in, or any security issued by, any person, or any interest therein (or agree to
do any of the foregoing); or


 


(ii)                                  acquire any
business or going concern, or the whole or substantially the whole of the
assets or business of any person, or any assets that constitute a division or
operating unit of the business of any person (or agree to do any of the
foregoing).


 


(b)                           Paragraph (a) above
does not apply to any acquisition or investment which is a Permitted
Acquisition or a Permitted Transaction.


 


32.17             Arm’s
length terms


 


(a)                            No Obligor shall
(and the Company shall ensure that no other member of the Group will) enter
into any contract or arrangement with or for the benefit of any other person
which is not a member of the Group (including any disposal to that person)
other than in the ordinary course of business and on arm’s length terms or
better.


 


(b)                           Paragraph (a) above
does not apply to:


 


(i)                                      any JV Costs up to
an aggregate amount of €8,000,000; and


 


(ii)                                   a Permitted
Transaction.


 


(c)                            The Company shall
ensure that no member of the Group which is not an Obligor shall enter into any
contract or arrangement regarding a sale, lease, transfer or other disposal or
a loan, credit or other arrangement having a similar effect with or for the
benefit of any Obligor on terms less advantageous to that Obligor than arm’s
length terms.


 


90

















 


32.18             Hedging


 


(a)                            The Company shall
ensure that the hedging required by the Hedging Letter is effected within 90
days after the date of first utilisation of any Facility (and is maintained in
effect) in accordance with the terms of the Hedging Letter.


 


(b)                           No Obligor shall
(and the Company shall ensure that no other member of the Group will) enter (or
agree to enter) into any derivative transaction.


 


(c)                            Paragraph (b) above
does not apply to any derivative transaction which is a Permitted Hedging
Transaction.


 


32.19             Pensions


 


The
Company shall ensure that all pension schemes maintained or operated by, or for
the benefit of, any member of the Group and/or any of its employees:


 


(i)                                     are maintained and
operated in all material respects in accordance with all applicable laws and
contracts and their governing provisions; and


 


(ii)                                   are funded
substantially in accordance with the governing provisions of the scheme with
any funding shortfall advised by actuaries of recognised standing being
rectified in accordance with those governing provisions.


 


32.20             Taxes


 


(a)                            Each Obligor shall
(and the Company shall ensure that each other member of the Group will) pay all
material Taxes required to be paid by it within the time period allowed for
payment without incurring any material penalties for non-payment.


 


(b)                           Paragraph (a) above
does not apply to any Taxes:


 


(i)                                     being contested by
the relevant member of the Group in good faith and in accordance with the
relevant procedures;


 


(ii)                                  for which adequate
reserves are being maintained in accordance with, and to the extent required
by, GAAP; and


 


(iii)                               where payment can
be lawfully withheld and will not result in the imposition of any penalty nor
in any Security ranking in priority to the claims of any Finance Party under
any Finance Document or to any Security created under any Security Document.


 


(c)                            No member of the
Group may change its residence for Tax purposes.


 


32.21             Joint
Ventures


 


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


 


(i)                                     invest in or
acquire (or agree to invest in or acquire) any share in, or any security issued
by, any Joint Venture or any interest therein; or


 


(ii)                                  transfer any
assets, or lend, to or give a guarantee, Security or Quasi Security for, or
otherwise underwrite, the obligations of, or incur any other liability (whether
actual or contingent and whether present or future) in respect of, a Joint
Venture (or agree to do any of the foregoing).


 


91

















 


(b)                           Paragraph (a) above
does not apply to any acquisition of or investment in, or transfer or loan to,
or guarantee, Security or Quasi Security for the obligations of, or any other
liability in respect of, the Ti02 Joint Venture or a Permitted Joint Venture.


 


32.22             Guarantees
and Security


 


(a)                            The Company shall:


 


(i)                                     within 30 days of
a member of the Group becoming a Material Subsidiary, ensure that the relevant
member of the Group becomes an Additional Guarantor in accordance with
Clause 35 (Changes to the Obligors).


 


(b)                           The Company need
only perform its obligations under paragraph (a) above if it is not
unlawful for the relevant person to become a Guarantor and that person becoming
a Guarantor would not result in personal liability for that person’s directors
or other management. Each Obligor must use, and must procure that the relevant person
uses, all reasonable endeavours lawfully available to avoid any such
unlawfulness or personal liability. This includes agreeing to a limit on the
amount guaranteed. The Agent may (but shall not be obliged to) agree to such a
limit if, in its opinion, to do so would avoid the relevant unlawfulness or
personal liability.


 


(c)                            Each Obligor shall
(and the Company shall ensure that each other member of the Group will), at its
own expense, promptly take all such action as the Agent or the Security Agent
may require:


 


(i)                                     for the purpose of
perfecting or protecting any of the Finance Parties’ rights under, and
preserving the Security intended to be created or evidenced by, any of the
Finance Documents; and


 


(ii)                                  for the purpose of
facilitating the realisation of any of that Security,


 


including
the execution of any transfer, conveyance, assignment or assurance of any asset
and the giving of any notice, order or direction and the making of any
registration which the Agent or the Security Agent may reasonably require.


 


(d)                           The Company shall
ensure that at all times:


 


(i)                                     the aggregate of
the unconsolidated net assets (excluding any intragroup loans) of the
Guarantors (without double counting and excluding any interests in any
Subsidiaries which are Guarantors) exceeds 80 per cent. of the consolidated net
assets of the Group; and


 


(ii)                                  the aggregate of
the unconsolidated revenues or EBITDA of the Guarantors (without double
counting and excluding any dividends or other distributions from Subsidiaries
which are Guarantors) exceeds 80 per cent. of the consolidated revenues or
EBITDA of the Group,


 


in
each case calculated by reference to the then most recent annual and quarterly
unaudited unconsolidated financial statements of each Guarantor and the then
most recent annual and quarterly audited consolidated financial statements of
the Group.


 


32.23             Issue of shares


 


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


 


92

















 


(i)                                     issue any share to
any person; or


 


(ii)                                  grant to any
person any conditional or unconditional option, warrant or other right to call
for the issue or allotment of, subscribe for, purchase or otherwise acquire any
share of any member of the Group (including any right of pre-emption,
conversion or exchange), or alter any right attaching to any share capital of
any member of the Group.


 


(b)                           Paragraph (a) above
does not apply to:


 


(i)                                     any issue of
shares by a member of the Group to its immediate holding company; and


 


(ii)                                  any issue of
shares by a member of the Group which is not wholly-owned, if such shares are
issued pro rata to its shareholders.


 


32.24             Condition subsequent


 


Within 20 Business Days of request by the Security Agent (or
such longer period as the Company and the Security Agent (in its sole
discretion) may agree), the Company shall enter into a Transfer of Title
for Security Agreement and/or an Agreement on the Security Assignment of
Intellectual Property Rights (on terms substantially the same as the terms of
the existing Security Documents), if the Security Agent considers it necessary
to do so to protect the legitimate interests of the Finance Parties (taking
into account (i) the value of the assets subject to security under the existing
Security Documents as a whole and (ii) the proportion of the costs
associated with the taking and perfection of the additional security to the
value of the assets proposed to be subject to the additional security requested
by the Security Agent).


 


33.                         EVENTS OF DEFAULT


 


Each of the events or circumstances set out in Clause 33 is
an Event of Default (save for Clause 33.16 (Acceleration).


 


33.1                   Non-payment


 


An Obligor does not pay on the due date any amount payable
pursuant to a Finance Document at the place at and in the currency in which it
is expressed to be payable unless:


 


(a)                                   its
failure to pay is caused by:


 


(i)                                  administrative
or technical error; or


 


(ii)                               a
Disruption Event; and


 


(b)                                  payment
is made within 3 Business Days of its due date.


 


33.2                   Financial
covenants


 


Any requirement of Clause 31 (Financial covenants) is not satisfied.


 


33.3                   Other
obligations


 


(a)                            Any
person (other than a Finance Party) does not comply with Clauses 32.4 (Disposals), 32.5 (Merger), 32.14
(Financial Indebtedness), 32.16 (Acquisitions), 32.21 (Joint ventures)
and 32.22 (Guarantees and Security) (other than
paragraph (c) thereof).


 


(b)                           An
Obligor does not comply with any provision of the Finance Documents (other than
those referred to in Clause 33.1 (Non-payment)
and Clause 33.2 (Financial covenants)
and paragraph (a) above), unless the failure to comply is capable of
remedy and is remedied within 20 Business 


 


93

















 


Days of the
earlier of the Agent giving notice to the Company or the Company becoming aware
of the failure to comply.


 


33.4                   Misrepresentation


 


Any representation or statement made or deemed to be made by
an Obligor in the Finance Documents or any other document delivered by or on
behalf of any Obligor under or in connection with any Finance Document is or
proves to have been incorrect or misleading in any material respect when made
or deemed to be made unless the facts or circumstances underlying the
misrepresentation are capable of remedy and are remedied within the earlier of
20 Business Days of the Agent giving notice to the Company and the Company
becoming aware of the misrepresentation.


 


33.5                   Cross
default


 


(a)                            Any
Financial Indebtedness of any member of the Group is not paid when due nor
within any originally applicable grace period.


 


(b)                           Any
Financial Indebtedness of any member of the Group is declared to be or
otherwise becomes due and payable prior to its specified maturity as a result
of an event of default (however described).


 


(c)                            Any
commitment for any Financial Indebtedness of any member of the Group is
cancelled or suspended by a creditor of any member of the Group as a result of
an event of default (however described).


 


(d)                           Any
creditor of any member of the Group becomes entitled to declare any Financial
Indebtedness of any member of the Group due and payable prior to its specified
maturity as a result of an event of default (however described).


 


(e)                            No
Event of Default will occur under this Clause 33.5 if the aggregate amount of
Financial Indebtedness or commitment for Financial Indebtedness falling within
paragraphs (a) to (d) above is less than €1,000,000 (or its
equivalent in any other currency or currencies).


 


33.6                   Insolvency


 


(a)                            A
member of the Group is unable or admits inability to pay its debts as they fall
due, suspends making payments on any of its debts or, by reason of actual or
anticipated financial difficulties, commences negotiations with one or more of
its creditors with a view to rescheduling any of its indebtedness.


 


(b)                           The
value of the assets of any member of the Group is less than its liabilities
(taking into account contingent and prospective liabilities).


 


(c)                            A
moratorium is declared in respect of any indebtedness of any member of the
Group.


 


33.7                   Insolvency
proceedings


 


(a)                            In
relation to a member of the Group having its seat in Germany:


 


(i)                                     a
petition for insolvency proceedings in respect of its assets (Antrag auf Eröffnung eines Insolvenzverfahrens)
is filed, threatened to be filed or any event occurs which constitutes a cause
for the initiation of insolvency proceedings (Eröffnungsgrund)
as set out in sections 17 et seq. of the German Insolvency Code (Insolvenzordnung); or


 


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(ii)                                  actions
are taken pursuant to section 21 of the German Insolvency Code by a
competent court; or


 


(iii)                               it
commences negotiations with one or more of its creditors with a view to the
general readjustment or rescheduling of its indebtedness; or


 


(b)                           with
respect to any member of the Group located outside Germany, any corporate
action, legal proceedings or other procedure or step is taken in relation to:


 


(i)                                     the
suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary arrangement,
scheme of arrangement or otherwise) of any member of the Group other than a
solvent liquidation or reorganisation of any member of the Group which is not
an Obligor;


 


(ii)                                  a
composition, compromise, assignment or arrangement with any creditor of any
member of the Group;


 


(iii)                               the
appointment of a liquidator (other than in respect of a solvent liquidation of
a member of the Group which is not an Obligor), receiver, administrative
receiver, administrator, compulsory manager or other similar officer in respect
of any member of the Group or any of its assets; or


 


(iv)                              enforcement
of any Security over any assets of any member of the Group, or


 


(c)                            any
analogous procedure or step is taken in any jurisdiction,


 


provided that no Event of Default shall have occurred under
this Clause 33.7 in respect of (A) an amalgamation, demerger, merger,
consolidation or corporate reconstruction on a solvent basis of a member of the
Group which is not an Obligor, or (B) any winding-up petition which is
frivolous or vexatious and is discharged, stayed or dismissed within 14 days of
commencement and prior to its advertisement.


 


(d)                           unless
the context otherwise requires, a reference in each Finance Document in respect
of an entity incorporated in Finland to:


 


(i)                                      winding-up,
administration or dissolution includes any declaration of bankruptcy (asetettu konkurssiin);


 


(ii)                                   an
insolvency includes a bankruptcy (konkurssi) and
any business restructuring (yrityssaneeraus);


 


(iii)                                a
liquidator in bankruptcy includes a “pesänhoitaja”;


 


(iv)                               an
administrator includes a “selvittäjä” and
“valvoja” in a business restructuring (yrityssaneeraus); and


 


(v)                                  an
attachment includes a “takavarikko”
and/or any other “turvaamistoimi” granted in
accordance with Finnish law.


 


33.8                   Creditors’
process


 


Any expropriation, attachment, sequestration, distress or
execution or any analogous process in any jurisdiction affects any asset or
assets of a member of the Group and is not discharged within 5 Business Days.


 


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33.9                   Ownership
of the Obligors


 


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


 


33.10             Unlawfulness


 


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


 


33.11             Repudiation


 


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


 


33.12             Security
and guarantees


 


Any
Security Document or any guarantee in, or any subordination under, any Finance
Document is not in full force and effect or any Security Document does not
create in favour of the Security Agent for the benefit of the Finance Parties,
the Security which it is expressed to create fully perfected and with the
ranking and priority it is expressed to have in a manner and to an extent which
is or is reasonably likely to be materially adverse to the interests of the
Lenders under the Finance Documents.


 


33.13             Material
adverse change


 


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


 


33.14             Litigation


 


(a)                            Any litigation,
arbitration, proceeding or dispute is started or threatened or there are any
circumstances likely to give rise to any litigation, arbitration, proceeding or
dispute, in each case which, if adversely determined, might reasonably be expected
to have a Material Adverse Effect.


 


(b)                           Paragraph (a) shall
not apply to any litigation, arbitration or administrative proceedings which
are vexatious or frivolous.


 


33.15             Cessation
of business


 


Any
Obligor suspends or ceases (or threatens to suspend or cease) to carry on all
or a material part of its business except as part of a Permitted Merger,
Permitted Transaction or a Permitted Disposal.


 


33.16             Acceleration


 


(a)                            On
and at any time after the occurrence of an Event of Default which is continuing
the Agent may, and shall if so directed by the Majority Lenders, by notice to
the Company:


 


(i)                                     cancel
the Total Commitments whereupon they shall immediately be cancelled;


 


(ii)                                  declare
that all or part of the Utilisations, together with accrued interest, and all
other amounts accrued or outstanding under the Finance Documents be immediately
due and payable, whereupon they shall become immediately due and payable;


 


(iii)                               declare
that all or part of the Utilisations be payable on demand, whereupon they shall
immediately become payable on demand by the Agent on the instructions of the
Majority Lenders; and/or


 


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(iv)                              declare
that full cash cover in respect of each Letter of Credit or Bank Guarantee is
immediately due and payable whereupon it shall become immediately due and
payable.


 


(b)                           Promptly after
being notified by the Agent of the Acceleration Date, each Ancillary Lender
shall by notice to the Company:


 


(i)                                     cancel its
Ancillary Commitment whereupon it shall immediately be cancelled;


 


(ii)                                 declare that all
or the corresponding part of the utilisations under any Ancillary Facility
provided by that Ancillary Lender, together with accrued interest, full cash
cover in respect of all or the corresponding part of the contingent liabilities
of that Ancillary Lender under that Ancillary Facility, and all or the
corresponding part of all other amounts accrued or outstanding in respect of
that Ancillary Facility be immediately due and payable, whereupon they shall
become immediately due and payable; and/or


 


(iii)                              declare that all
or the corresponding part of the utilisations under any Ancillary Facility
provided by that Ancillary Lender, together with accrued interest, full cash
cover in respect of all or the corresponding part of the contingent liabilities
of that Ancillary Lender under that Ancillary Facility, and all or the
corresponding part of all other amounts accrued or outstanding in respect of
that Ancillary Facility be payable upon demand, whereupon they shall
immediately become payable on demand by that Ancillary Lender (on the
instructions of the Agent, if so directed by the Majority Lenders).


 


(c)                            No Ancillary
Lender may cancel the whole or any part of its Ancillary Commitment, declare
that all or part of the utilisations under an Ancillary Facility provided by
that Ancillary Lender be immediately due and payable or require the payment of
cash cover in respect of all or any part of any contingent liabilities of that
Ancillary Lender under an Ancillary Facility unless the Agent has delivered a
notice to the Company pursuant to sub-paragraph (ii) of paragraph (a) of
this Clause 26.16.


 


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SECTION 9


 


CHANGES TO
PARTIES


 


34.                         CHANGES TO THE LENDERS


 


34.1                   Assignments
and transfers by the Lenders


 


Subject to this Clause 34, a Lender (the “Existing  Lender”)
may:


 


(a)                                   assign
any of its rights; or


 


(b)                                  transfer
by novation any of its rights and obligations,


 


to another bank or financial institution or to a trust, fund
or other entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial assets
(the “New Lender”).


 


34.2                   Conditions
of assignment or transfer


 


(a)                            The
consent of the Company is required for an assignment or transfer by an Existing
Lender, unless the assignment or transfer is (i) prior to the Syndication
Date, provided the New Lender is on the list of potential syndicate members
agreed by the Company and the Agent, (ii) to another Existing Lender or an
Affiliate of a Existing Lender or (iii) made while an Event of Default is
continuing.


 


(b)                           The
consent of the Company to an assignment or transfer must not be unreasonably
withheld or delayed.  The Company will be
deemed to have given its consent five Business Days after the Existing Lender
has requested it unless consent is expressly refused by the Company within that
time.


 


(c)                            The
consent of the Company to an assignment or transfer must not be withheld solely
because the assignment or transfer may result in an increase to the Mandatory
Cost.


 


(d)                           The
consent of the Issuing Bank to an assignment or transfer is required in
accordance with paragraph (a) of Clause 7.2 (Assignments
and transfers).


 


(e)                            An
assignment will only be effective on:


 


(i)                                     receipt
by the Agent of written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same obligations
to the other Finance Parties as it would have been under if it was an Original
Lender; and


 


(ii)                                  performance
by the Agent of all necessary “know your customer” or other similar checks
under all applicable laws and regulations in relation to such assignment to a
New Lender, the completion of which the Agent shall promptly notify to the
Existing Lender and the New Lender.


 


(f)                              A
transfer will only be effective if the procedure set out in Clause 34.5 (Procedure for transfer) is complied with.


 


(g)                           Any
assignment or transfer by an Existing Lender to a New Lender shall only be
effective if it transfers or assigns the Existing Lender’s share of each
Facility pro rata.


 


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(h)                           If:


 


(i)                                     a
Lender assigns or transfers any of its rights or obligations under the Finance
Documents or changes its Facility Office; and


 


(ii)                                  as
a result of circumstances existing at the date the assignment, transfer or
change occurs, an Obligor would be obliged to make a payment to the New Lender
or Lender acting through its new Facility Office under Clause 23 (Tax gross-up and indemnities) or Clause 24
(Increased Costs),


 


then the New Lender or Lender acting through its new
Facility Office is only entitled to receive payment under those Clauses to the
same extent as the Existing Lender or Lender acting through its previous
Facility Office would have been if the assignment, transfer or change had not
occurred.


 


34.3                   Assignment
or transfer fee


 


The New Lender shall, on the date upon which an assignment
or transfer takes effect, pay to the Agent (for its own account) a fee of €2,000.


 


34.4                   Limitation
of responsibility of Existing Lenders


 


(a)                            Unless
expressly agreed to the contrary, an Existing Lender makes no representation or
warranty and assumes no responsibility to a New Lender for:


 


(i)                                     the
legality, validity, effectiveness, adequacy or enforceability of the Finance
Documents or any other documents;


 


(ii)                                  the
financial condition of any Obligor;


 


(iii)                               the
performance and observance by any Obligor of its obligations under the Finance
Documents or any other documents; or


 


(iv)                              the
accuracy of any statements (whether written or oral) made in or in connection
with any Finance Document or any other document,


 


and any representations or warranties implied by law are
excluded.


 


(b)                           Each
New Lender confirms to the Existing Lender and the other Finance Parties that
it:


 


(i)                                     has
made (and shall continue to make) its own independent investigation and
assessment of the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by the Existing Lender
in connection with any Finance Document; and


 


(ii)                                 will
continue to make its own independent appraisal of the creditworthiness of each
Obligor and its related entities whilst any amount is or may be outstanding
under the Finance Documents or any Commitment is in force.


 


(c)                            Nothing
in any Finance Document obliges an Existing Lender to:


 


(i)                                     accept
a re-transfer from a New Lender of any of the rights and obligations assigned
or transferred under this Clause 34; or


 


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(ii)                                  support
any losses directly or indirectly incurred by the New Lender by reason of the
non-performance by any Obligor of its obligations under the Finance Documents
or otherwise.


 


34.5                   Procedure
for transfer


 


(a)                            Subject
to the conditions set out in Clause 34.2 (Conditions
of assignment or transfer) a transfer is effected in accordance with
paragraph (c) below when the Agent executes an otherwise duly completed
Transfer Certificate delivered to it by the Existing Lender and the New
Lender.  The Agent shall, subject to
paragraph (b) below, as soon as reasonably practicable after receipt by it
of a duly completed Transfer Certificate appearing on its face to comply with
the terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate.


 


(b)                           The
Agent shall only be obliged to execute a Transfer Certificate delivered to it
by the Existing Lender and the New Lender once it is satisfied it has complied
with all necessary “know your customer” or other similar checks under all
applicable laws and regulations in relation to the transfer to such New Lender.


 


(c)                            On
the Transfer Date:


 


(i)                                    to
the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance Documents
each of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their
respective rights against one another under the Finance Documents shall be
cancelled (being the “Discharged Rights and
Obligations”);


 


(ii)                                 each
of the Obligors and the New Lender shall assume obligations towards one another
and/or acquire rights against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and the New Lender have
assumed and/or acquired the same in place of that Obligor and the Existing
Lender;


 


(iii)                               the
Agent, the Arranger, the Security Agent, the New Lender, the other Lenders, the
Issuing Bank and any relevant Ancillary Lenders shall acquire the same rights
and assume the same obligations between themselves as they would have acquired
and assumed had the New Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the transfer and to that
extent the Agent, the Arranger, the Security Agent, the Issuing Bank, any
relevant Ancillary Lender and the Existing Lender shall each be released from
further obligations to each other under the Finance Documents; and


 


(iv)                              the
New Lender shall become a Party as a “Lender”.


 


34.6                   Copy
of Transfer Certificate to Company


 


The Agent shall, as soon as reasonably practicable after it
has executed a Transfer Certificate, send to the Company a copy of that
Transfer Certificate.


 


34.7                   Disclosure
of information


 


Any Lender may disclose to any of its Affiliates and any
other person:


 


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(a)                                   to
(or through) whom that Lender assigns or transfers (or may potentially assign
or transfer) all or any of its rights and obligations under this Agreement;


 


(b)                                  with
(or through) whom that Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under which payments
are to be made by reference to, this Agreement or any Obligor;


 


(c)                                   to
whom, and to the extent that, information is required to be disclosed by any
applicable law or regulation; or


 


(d)                                  for
whose benefit that Lender charges, assigns or otherwise creates Security (or
may do so) pursuant to Clause 34.8 (Security over Lenders’
rights),


 


any information about any Obligor, the Group and the Finance
Documents as that Lender shall consider appropriate if, in relation to
paragraphs (a), (b) and (d) (in respect of 26.8 (b) (Creditors’ process)) above, the person to whom the
information is to be given has entered into a Confidentiality Undertaking.  This Clause supersedes any previous agreement
relating to the confidentiality of this information.


 


34.8                   Security
over Lenders’ rights


 


In addition to the other rights provided to Lenders under
this Clause 34, each Lender may without consulting with or obtaining consent
from any Obligor, at any time charge, assign or otherwise create Security in or
over (whether by way of collateral or otherwise) all or any of its rights under
any Finance Document to secure obligations of that Lender including:


 


(a)                                   any
charge, assignment or other Security to secure obligations to a federal reserve
or central bank; and


 


(b)                                  in
the case of any Lender which is a fund, any charge, assignment or other
Security granted to any holders (or trustee or representatives of holders) of
obligations owed, or securities issued, by that Lender as Security for those
obligations or securities,


 


except that no such charge, assignment or Security shall:


 


(i)                                 release
a Lender from any of its obligations under the Finance Documents or substitute
the beneficiary of the relevant charge, assignment or Security for the Lender
as a party to any of the Finance Documents; or


 


(ii)                              require
any payments to be made by an Obligor or grant to any person any more extensive
rights than those required to be made or granted to the relevant Lender under
the Finance Documents.


 


35.                         CHANGES TO THE OBLIGORS


 


35.1                   Assignments
and transfer by Obligors


 


No Obligor may assign any of its rights or transfer any of
its rights or obligations under the Finance Documents.


 


35.2                   Additional
Borrowers


 


(a)                            Subject
to compliance with the provisions of paragraphs (c) and (d) of Clause
30.6 (“Know your customer” checks),
the Company may request that any of its wholly owned Subsidiaries becomes an
Additional Borrower.  That Subsidiary
shall become an Additional Borrower if:


 


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(i)                                     all
the Lenders participating in the relevant Facility approve the addition of that
Subsidiary;


 


(ii)                                  the
Company delivers to the Agent a duly completed and executed Accession Letter;


 


(iii)                               the
Company confirms that no Default is continuing or would occur as a result of
that Subsidiary becoming an Additional Borrower; and


 


(iv)                              the
Agent has received all of the documents and other evidence listed in Part II
of Schedule 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).


 


35.3                   Resignation
of a Borrower


 


(a)                            In
this Clause 28.3 (Resignation of a Borrower),
Clause 35.5 (Resignation of a Guarantor) and
Clause 28.7 (Resignation and release of Security on
disposal), “Third Party Disposal”
means the disposal of an Obligor to a person which is not a member of the Group
where that disposal is permitted under Clause 32.4 (Disposals)
or made with the approval of the Majority Lenders (and the Parent has confirmed
this is the case).


 


(b)                           If
a Borrower is the subject of a Third Party Disposal, the Company may request
that such Borrower (other than the Company) ceases to be a Borrower by
delivering to the Agent a Resignation Letter.


 


(c)                            The
Agent shall accept a Resignation Letter and notify the Company and the other
Finance Parties of its acceptance if:


 


(i)                                     the
Company has confirmed that no Default is continuing or would result from the
acceptance of the Resignation Letter;


 


(ii)                                  the
Borrower is under no actual or contingent obligations as a Borrower under any
Finance Documents;


 


(iii)                               where
the Borrower is also a Guarantor (unless its resignation has been accepted in
accordance with Clause 35.5 (Resignation of a Guarantor)),
its obligations in its capacity as Guarantor continue to be legal, valid,
binding and enforceable and in full force and effect (subject to the Legal
Reservations) and the amount guaranteed by it as a Guarantor is not decreased
(and the Company has confirmed this is the case); and


 


(iv)                              the
Company has confirmed that it shall ensure that any relevant Net Sale Proceeds
will be applied in accordance with Clause 18.5 (Mandatory
prepayment — Net Sale Proceeds).


 


(d)                           Upon
notification by the Agent to the Company of its acceptance of the resignation
of a Borrower, that company shall cease to be a Borrower and shall have no
further rights or obligations under the Finance Documents as a Borrower except
that the resignation shall not take effect (and the Borrower will continue to
have rights and obligations under the Finance Documents) until the date on
which the Third Party Disposal takes effect.


 


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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.


 


35.4                   Additional
Guarantors


 


(a)                            Subject
to compliance with the provisions of paragraphs (c) and (d) of Clause
30.6 (“Know your customer” checks),
the Company may request that any of its wholly owned Subsidiaries become an
Additional Guarantor.  That Subsidiary
shall become an Additional Guarantor if:


 


(i)                                     (except
in the case of an Additional Guarantor incorporated in a jurisdiction of
incorporation of an existing Obligor) the Agent approves the addition of that
Subsidiary;


 


(ii)                                  the
Company delivers to the Agent a duly completed and executed Accession Letter;
and


 


(iii)                               the
Agent has received all of the documents and other evidence listed in Part II
of Schedule 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).


 


35.5                   Resignation
of a Guarantor


 


(a)                            The
Company may request that a Guarantor (other than the Company) ceases to be a
Guarantor by delivering to the Agent a Resignation Letter if that Guarantor is
being disposed of by way of a Third Party Disposal (as defined in Clause 35.3 (Resignation of a Borrower)) and the Company has confirmed this is the case.


 


(b)                           The
Agent shall accept a Resignation Letter and notify the Company and the Lenders
of its acceptance if:


 


(i)                                     the
Company has confirmed that no Default is continuing or would result from the
acceptance of the Resignation Letter;


 


(ii)                                  no
payment is due from the Guarantor under Clause 28.1 (Guarantee
and indemnity);


 


(iii)                               where
the Guarantor is also a Borrower, it is under no actual or contingent
obligations as a Borrower and has resigned and ceased to be a Borrower under
Clause 35.3 (Resignation of a Borrower); and


 


(iv)                              the
Company has confirmed that it shall ensure that the Net Sale Proceeds will be
applied, in accordance with Clause 18.5 (Mandatory Prepayment — Net
Sale Proceeds).


 


(c)                            The
resignation of that Guarantor shall not be effective until the date of the
relevant Third Party Disposal at which time that company shall cease to be a
Guarantor and shall have no further rights or obligations under the Finance
Documents as a Guarantor.


 


35.6                   Repetition
of Representations


 


Delivery of an Accession Letter constitutes confirmation by
the relevant Subsidiary that the Repeating Representations and each of the
representations set out in Clauses 29.5 (Validity
and admissibility in evidence), 
29.7 (Deduction of Tax)
and  29.8 (No filing or stamp taxes) are true 


 


103

















 


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


 


35.7                   Resignation
and release of security on disposal


 


(a)                            If
a Borrower or Guarantor is or is proposed to be the subject of a Third Party
Disposal then:


 


(i)                                     where
that Borrower or Guarantor created Security pursuant to any Finance Document
over any of its assets or business in favour of the Security Agent, or Security
pursuant to any Finance Document in favour of the Security Agent was created
over the shares (or equivalent) of that Borrower or Guarantor, the Security
Agent may at the cost and request of the Company, release those assets,
business or shares (or equivalent) and issue certificates of
non-crystallisation;


 


(ii)                                  the
resignation of that Borrower or Guarantor and related release of Security
pursuant to any Finance Document referred to in paragraph (i) above shall
not become effective until the date of that disposal; and


 


(iii)                               if
the disposal of that Borrower or Guarantor is not made, the Resignation Letter
of that Borrower or Guarantor and the related release of Security referred to
in paragraph (i) above shall have no effect and the obligations of the
Borrower or Guarantor and the Security pursuant to any Finance Document created
or intended to be created by or over that Borrower or Guarantor shall continue
in full force and effect.


 


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SECTION 10


 


THE FINANCE
PARTIES


 


36.                        ROLE OF THE AGENT, THE SECURITY AGENT AND THE ARRANGER


 


36.1                  Appointment
of the Agent and the Security Agent


 


(a)                            Each
other Finance Party appoints the Agent to act as its agent under and in
connection with the Finance Documents.


 


(b)                           Each
other Finance Party appoints the Security Agent to act as security trustee
under and in connection with the Finance Documents.


 


(c)                            Each
other Finance Party authorises each of the Agent and the Security Agent to
exercise the rights, powers, authorities and discretions specifically given to
it under or in connection with the Finance Documents together with any other
incidental rights, powers, authorities and discretions.


 


(d)                           For
the avoidance of doubt, each other Finance Party authorises the Agent to
execute and deliver the Subordination Agreement.


 


36.2                  Duties
of the Agent and the Security Agent


 


(a)                            The
Agent shall promptly forward to a Party the original or a copy of any document
which is delivered to the Agent for that Party by any other Party.


 


(b)                           Except
where a Finance Document specifically provides otherwise, the Agent is not
obliged to review or check the adequacy, accuracy or completeness of any
document it forwards to another Party.


 


(c)                            If
the Agent receives notice from a Party referring to this Agreement, describing
a Default and stating that the circumstance described is a Default, it shall
promptly notify the Finance Parties.


 


(d)                           If
the Agent is aware of the non-payment of any principal, interest, commitment
fee or other fee payable to a Finance Party (other than the Agent or the
Arranger) under this Agreement it shall promptly notify the other Finance
Parties.


 


(e)                            The
Agent shall promptly send to the Security Agent such certification as the
Security Agent may require pursuant to paragraph 7 (Basis of distribution) of Schedule 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.


 


36.3                  Role
of the Arranger


 


Except as specifically provided in the Finance Documents,
the Arranger has no obligations of any kind to any other Party under or in
connection with any Finance Document.


 


36.4                  Role
of the Security Agent


 


The Security Agent shall not be an agent of (except as expressly
provided in any Finance Document) any Finance Party under or in connection with
any Finance Document.


 


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36.5                  No
fiduciary duties


 


(a)                            Nothing
in this Agreement constitutes the Agent, the Security Agent (except as
expressly provided in any Finance Document) or the Arranger as a trustee or
fiduciary of any other person.


 


(b)                           Neither
the Agent, the Security Agent (except as expressly provided in any Finance
Document) nor the Arranger shall be bound to account to any Lender for any sum
or the profit element of any sum received by it for its own account.


 


36.6                  Business
with the Group


 


The Agent, the Security Agent and the Arranger may accept
deposits from, lend money to and generally engage in any kind of banking or
other business with any member of the Group.


 


36.7                  Rights
and discretions of the Agent and the Security Agent


 


(a)                            The
Agent and the Security Agent may rely on:


 


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


 


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


 


(b)                           The
Agent and the Security Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders or, as the case may be, as
security trustee for the Finance Parties) that:


 


(i)                                    no
Default has occurred (unless it has actual knowledge of a Default arising under
Clause 33.1 (Non-payment));


 


(ii)                                 any
right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised; and


 


(iii)                              any
notice or request made by the Company (other than a Utilisation Request or
Selection Notice) is made on behalf of and with the consent and knowledge of
all the Obligors.


 


(c)                            Each
of the Agent and the Security Agent may engage, pay for and rely on the advice
or services of any lawyers, accountants, surveyors or other experts.


 


(d)                           Each
of the Agent and the Security Agent may act in relation to the Finance
Documents through its personnel and agents.


 


(e)                            The
Agent may disclose to any other Party any information it reasonably believes it
has received as agent under this Agreement.


 


(f)                              Notwithstanding
any other provision of any Finance Document to the contrary, neither the Agent,
the Security Agent nor the Arranger is obliged to do or omit to do anything if
it would or might in its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of confidentiality.


 


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36.8                  Majority
Lenders’ instructions


 


(a)                            Unless
a contrary indication appears in a Finance Document, the Agent and the Security
Agent shall (i) exercise any right, power, authority or discretion vested
in it as Agent or Security Agent (as the case may be) in accordance with any
instructions given to it by the Majority Lenders (or, if so instructed by the
Majority Lenders, refrain from exercising any right, power, authority or
discretion vested in it as Agent or Security Agent, as the case may be) and (ii) not
be liable for any act (or omission) if it acts (or refrains from taking any
action) in accordance with an instruction of the Majority Lenders.


 


(b)                           Unless
a contrary indication appears in a Finance Document, any instructions given by
the Majority Lenders will be binding on all the Finance Parties.


 


(c)                            Each
of the Agent and the Security Agent may refrain from acting in accordance with
the instructions of the Majority Lenders (or, if appropriate, the Lenders)
until it has received such security as it may require for any cost, loss or
liability (together with any associated VAT) which it may incur in complying
with the instructions.


 


(d)                           In
the absence of instructions from the Majority Lenders (or, if appropriate, the
Lenders), each of the Agent and the Security Agent may act (or refrain from
taking action) as it considers to be in the best interest of the Lenders.


 


(e)                            Neither
the Agent nor the Security Agent is 
authorised to act on behalf of a Lender (without first obtaining that
Lender’s consent) in any legal or arbitration proceedings relating to any
Finance Document.


 


36.9                  Responsibility
for documentation


 


Neither the Agent, the Security Agent nor the Arranger:


 


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


 


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


 


36.10            Exclusion
of liability


 


(a)                            Without
limiting paragraph (b) below (and without prejudice to the provisions of
paragraph (e) of Clause 40.11 (Disruption
to Payment Systems etc)), neither the Agent nor the Security Agent
will be liable including without limitation for negligence or any other
category of liability whatsoever for any action taken by it under or in
connection with any Finance Document, unless directly caused by its gross negligence
or wilful misconduct.


 


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


 


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(c)                            Neither
the Agent nor the Security Agent will be liable for any delay (or any related
consequences) in crediting an account with an amount required under the Finance
Documents to be paid by it if it has taken all necessary steps as soon as
reasonably practicable to comply with the regulations or operating procedures
of any recognised clearing or settlement system used by it for that purpose.


 


(d)                           Nothing
in this Agreement shall oblige the Agent or the Arranger to carry out any “know
your customer” or other checks in relation to any person on behalf of any
Lender and each Lender confirms to the Agent and the Arranger that it is solely
responsible for any such checks it is required to carry out and that it may not
rely on any statement in relation to such checks made by the Agent or the
Arranger.


 


36.11            Lenders’
indemnity to the Agent and the Security Agent


 


Each Lender shall (in proportion to its share of the Total
Commitments or, if the Total Commitments are then zero, to its share of the
Total Commitments immediately prior to their reduction to zero) indemnify the
Agent and the Security Agent, within three Business Days of demand, against any
cost, loss or liability including without limitation for negligence or any
other category of liability whatsoever incurred by the Agent or the Security
Agent (otherwise than by reason of its gross negligence or wilful misconduct)
(or in the case of any cost, loss or liability pursuant to Clause 40.11 (Disruption to Payment Systems etc.)
notwithstanding the Agent’s negligence, gross negligence or any other category
of liability whatsoever but not including any claim based on the fraud of the
Agent) in acting as Agent or, as the case may be, Security Agent under the
Finance Documents (unless it has been reimbursed by an Obligor pursuant to a
Finance Document).


 


36.12            Resignation
of the Agent or the Security Agent


 


(a)                            The
Agent or the Security Agent may resign and appoint one of its Affiliates acting
through an office in the United Kingdom, Germany or Finland as successor by
giving notice to the other Finance Parties and the Company.


 


(b)                           Alternatively
the Agent or the Security Agent may resign by giving notice to the other
Finance Parties and the Company, in which case the Majority Lenders (after consultation
with the Company) may appoint a successor Agent or, as the case may be,
Security Agent in each case acting through an office in the United Kingdom,
Germany or Finland.


 


(c)                            If
the Majority Lenders have not appointed a successor Agent or, as the case may
be, Security Agent in accordance with paragraph (b) above within 30 days
after notice of resignation was given, the Agent or, as the case may be,
Security Agent (after consultation with the Company) may appoint a successor
Agent or Security Agent.


 


(d)                           The
retiring Agent or Security Agent shall, at its own cost, make available to its
successor such documents and records and provide such assistance as its
successor may reasonably request for the purposes of performing its functions
as Agent or Security Agent under the Finance Documents.


 


(e)                            The
resignation notice of the Agent or Security Agent shall only take effect upon
the appointment of a successor.


 


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(f)                              Upon
the appointment of a successor, the retiring Agent or Security Agent shall be
discharged from any further obligation in respect of the Finance Documents but
shall remain entitled to the benefit of this Clause 36. Its successor and each
of the other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an original Party.


 


(g)                           After
consultation with the Company, the Majority Lenders may, by notice to the Agent
or, as the case may be, the Security Agent, require it to resign in accordance
with paragraph (b) above.  In this
event, the Agent or, as the case may be, the Security Agent shall resign in
accordance with paragraph (b) above.


 


36.13            Confidentiality


 


(a)                            The
Agent (in acting as agent for the Finance Parties) and the Security Agent (in
acting as security trustee for the Finance Parties) shall be regarded as acting
through its respective agency or security trustee division which in each case
shall be treated as a separate entity from any other of its divisions or
departments.


 


(b)                           If
information is received by another division or department of the Agent or, as
the case may be, the Security Agent, it may be treated as confidential to that
division or department and the Agent or, as the case may be, the Security Agent
shall not be deemed to have notice of it.


 


36.14            Relationship
with the Lenders


 


(a)                            The
Agent may treat each Lender as a Lender, entitled to payments under this
Agreement and acting through its Facility Office unless it has received not
less than five Business Days prior notice from that Lender to the contrary in
accordance with the terms of this Agreement.


 


(b)                           Each
Lender shall supply the Agent with any information required by the Agent in
order to calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory Cost  formulae).


 


36.15            Credit
appraisal by the Lenders


 


Without affecting the responsibility of any Obligor for
information supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Agent, the Security Agent and the
Arranger that it has been, and will continue to be, solely responsible for
making its own independent appraisal and investigation of all risks arising
under or in connection with any Finance Document including but not limited to:


 


(a)                                   the
financial condition, status and nature of each member of the Group;


 


(b)                                  the
legality, validity, effectiveness, adequacy or enforceability of any Finance
Document and any other agreement, Security, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance Document;


 


(c)                                   whether
that Lender has recourse, and the nature and extent of that recourse, against
any Party or any of its respective assets under or in connection with any
Finance Document, the transactions contemplated by the Finance Documents or any
other agreement, Security, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance Document;
and


 


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(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.


 


36.16            Reference
Banks


 


If a Reference Bank (or, if a Reference Bank is not a
Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the
Agent shall (in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.


 


36.17            Management
time of the Agent and the Security Agent


 


If an Event of Default has occurred and is continuing, any
amount payable to the Agent or the Security Agent under Clause 25.3 (Indemnity to the Agent  and the Security  Agent), Clause 27 (Costs and expenses) and Clause 36.11 (Lenders’ indemnity to the Agent  and the Security  Agent) shall include the cost of utilising
its management time or other resources and will be calculated on the basis of
such reasonable daily or hourly rates as it may notify to the Company and the
Lenders, and is in addition to any fee paid or payable to it under Clause 22 (Fees).


 


36.18            Security
Agency provisions


 


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


 


36.19            Deduction
from amounts payable by the Agent or the Security Agent


 


If any Party owes an amount to the Agent or the Security
Agent under the Finance Documents the Agent or the Security Agent (as the case
may be) may, after giving notice to that Party, deduct an amount not exceeding
that amount from any payment to that Party which the Agent or the Security
Agent (as the case may be) would otherwise be obliged to make under the Finance
Documents and apply the amount deducted in or towards satisfaction of the
amount owed.  For the purposes of the
Finance Documents that Party shall be regarded as having received any amount so
deducted.


 


37.                        PARALLEL DEBT


 


(a)                            Each
Obligor hereby irrevocably and unconditionally undertakes to pay to the
Security Agent amounts equal to any amounts owing from time to time by that
Obligor to any Finance Party under any Finance Document as and when those
amounts are due.


 


(b)                           Each
Obligor and the Security Agent acknowledge that the obligations of each Obligor
under paragraph (a) are several and are separate and independent
from, and shall not in any way affect, the corresponding obligations of that
Obligor to any Finance Party under any Finance Document (its “Corresponding Debt”) provided that:


 


(i)                                     the
amounts for which each Obligor is liable under paragraph (a) (its “Parallel Debt”) shall be decreased to the
extent that its Corresponding Debt has been irrevocably paid or (in the case of
guarantee obligations) discharged; and


 


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(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 37, the Security Agent acts in its own name and not
as a trustee, and its claims in respect of the Parallel Debt shall not be held
on trust. The Security granted under the Secured Documents to the Security
Agent to secure the Parallel Debt is granted to the Security Agent in its
capacity as creditor of the Parallel Debt and shall not be held on trust.


 


(d)                           All
monies received by the Security Agent pursuant to this Clause, and all amounts
received by the Security Agent from or by the enforcement of any Security
granted to secure the Parallel Debt, shall be applied in accordance with
paragraph 15 (Order of application)
of Schedule 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.


 


38.                        CONDUCT OF BUSINESS BY THE FINANCE PARTIES


 


No provision of this Agreement will:


 


(a)                                 interfere
with the right of any Finance Party to arrange its affairs (tax or otherwise)
in whatever manner it thinks fit;


 


(b)                                oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim; or


 


(c)                                 oblige
any Finance Party to disclose any information relating to its affairs (tax or
otherwise) or any computations in respect of Tax.


 


39.                        SHARING AMONG THE FINANCE PARTIES


 


39.1                  Payments
to Finance Parties


 


If a Finance Party (a “Recovering Finance Party”)
receives or recovers any amount from an Obligor other than in accordance with
Clause 40 (Payment mechanics) and
applies that amount to a payment due under the Finance Documents then:


 


(a)                                   the
Recovering Finance Party shall, within three Business Days, notify details of
the receipt or recovery to the Agent;


 


(b)                                  the
Agent shall determine whether the receipt or recovery is in excess of the
amount the Recovering Finance Party would have been paid had the receipt or
recovery been received or made by the Agent and distributed in accordance with
Clause 40 (Payment


 


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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 40.5 (Partial
payments).


 


39.2                  Redistribution
of payments


 


The Agent shall treat the Sharing Payment as if it had been
paid by the relevant Obligor and distribute it between the Finance Parties
(other than the Recovering Finance Party) in accordance with Clause 40.5 (Partial payments).


 


39.3                  Recovering
Finance Party’s rights


 


(a)                            On
a distribution by the Agent under Clause 39.2 (Redistribution
of payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the redistribution.


 


(b)                           If
and to the extent that the Recovering Finance Party is not able to rely on its
rights under paragraph (a) above, the relevant Obligor shall be liable to
the Recovering Finance Party for a debt equal to the Sharing Payment which is
immediately due and payable.


 


39.4                  Reversal
of redistribution


 


If any part of the Sharing Payment received or recovered by
a Recovering Finance Party becomes repayable and is repaid by that Recovering
Finance Party, then:


 


(a)                                   each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 39.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to the appropriate
part of its share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Finance Party for its proportion of any
interest on the Sharing Payment which that Recovering Finance Party is required
to pay); and


 


(b)                                  that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable to the
reimbursing Finance Party for the amount so reimbursed.


 


39.5                  Exceptions


 


(a)                            This
Clause 39 shall not apply to the extent that the Recovering Finance Party would
not, after making any payment pursuant to this Clause, have a valid and
enforceable claim against the relevant Obligor.


 


(b)                           A
Recovering Finance Party is not obliged to share with any other Finance Party
any amount which the Recovering Finance Party has received or recovered as a
result of taking legal or arbitration proceedings, if:


 


(i)                                      it
notified that other Finance Party of the legal or arbitration proceedings; and


 


112

















 


(ii)                                 that
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably practicable
having received notice and did not take separate legal or arbitration
proceedings.


 


39.6                  Loss
sharing


 


(a)                            In this Clause:


 


“Loss Sharing Date” means the date (if any) on which the
Agent exercises any of its rights under paragraph (a)(ii) and/or (a)(iv) of
Clause 33.16 (Acceleration) or
the date (if any) on which the Facilities are cancelled under Clause 18.3 (Change of control).


 


(b)                           If, at any time
after the Loss Sharing Date, for any reason:


 


(i)                                      any outstandings
under Facility B or any Ancillary Facility will not be repaid and/or
discharged; and


 


(ii)                                   any resulting loss
is not shared between the Facility B Lenders and the Ancillary Lenders pro rata
to the amount which their respective exposures, whether drawn or undrawn, bore
to their total exposure, whether drawn or undrawn, as at the Loss Sharing Date,


 


the
Facility B Lenders and the Ancillary Lenders shall make such payments between
themselves as the Agent shall require to ensure that after taking into account
such payments, any such loss is shared between the Facility B Lenders and the
Ancillary Lenders pro rata to the amount which their respective exposures,
whether drawn or undrawn, bore to their total exposure, whether drawn or
undrawn, as at the Loss Sharing Date.


 


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SECTION 11


 


ADMINISTRATION


 


40.                        PAYMENT MECHANICS


 


40.1                  Payments
to the Agent


 


(a)                            On
each date on which an Obligor or a Lender is required to make a payment under a
Finance Document, that Obligor (subject to Clause 40.10 (Payments to the Security Agent) )or Lender
shall make the same available to the Agent (unless a contrary indication
appears in a Finance Document) for value on the due date at the time and in
such funds specified by the Agent as being customary at the time for settlement
of transactions in the relevant currency in the place of payment.


 


(b)                           Payment
shall be made to such account in the principal financial centre of the country
of that currency (or, in relation to euro, in the principal financial centre in
a Participating Member State or London) with such bank as the Agent specifies.


 


40.2                  Distributions
by the Agent


 


Each payment received by the Agent under the Finance
Documents for another Party shall, subject to Clause 40.3 (Distributions to  an  Obligor)
and Clause 40.4 (Clawback) and
Clause 40.10 (Payments to the Security Agent),
be made available by the Agent as soon as practicable after receipt to the
Party entitled to receive payment in accordance with this Agreement (in the
case of a Lender, for the account of its Facility Office), to such account as
that Party may notify to the Agent by not less than five Business Days’ notice
with a bank in the principal financial centre of the country of that currency
(or, in relation to euro, in the principal financial centre of a Participating
Member State or London).


 


40.3                  Distributions
to an Obligor


 


The Agent and the Security Agent may (with the consent of
the Obligor or in accordance with Clause 41 (Set-off))
apply any amount received by it for that Obligor in or towards payment (on the
date and in the currency and funds of receipt) of any amount due from that
Obligor under the Finance Documents or in or towards purchase of any amount of
any currency to be so applied.


 


40.4                  Clawback


 


(a)                            Where
a sum is to be paid to the Agent or the Security Agent under the Finance
Documents for another Party, the Agent or, as the case may be, the Security
Agent is not obliged to pay that sum to that other Party (or to enter into or
perform any related exchange contract) until it has been able to establish to
its satisfaction that it has actually received that sum.


 


(b)                           If
the Agent or the Security Agent pays an amount to another Party and it proves
to be the case that it had not actually received that amount, then the Party to
whom that amount (or the proceeds of any related exchange contract) was paid
shall on demand refund the same to the Agent or, as the case may be, the
Security Agent together with interest on that amount from the date of payment
to the date of receipt by the Agent or, as the case may be, the Security Agent,
calculated by it to reflect its cost of funds.


 


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40.5                  Partial
payments


 


(a)                            If
the Agent receives a payment that is insufficient to discharge all the amounts
then due and payable by an Obligor under the Finance Documents, the Agent shall
apply that payment towards the obligations of that Obligor under the Finance
Documents in the following order:


 


(i)                                    first,
in or towards payment pro rata of any unpaid fees, costs and expenses of the
Agent, the Security Agent, the Issuing Bank or the Arranger under the Finance
Documents;


 


(ii)                                 secondly,
in or towards payment pro rata of any accrued interest, fee or commission due
but unpaid under this Agreement or any Ancillary Facility Document;


 


(iii)                              thirdly,
in or towards payment pro rata of any principal due but unpaid under this
Agreement or any Ancillary Facility Document and any amount due but unpaid
under Clauses 14.4 (Claims under a Letter of
Credit or Bank Guarantee)
and 14.5 (Indemnities); and


 


(iv)                             fourthly,
in or towards payment pro rata of any other sum due but unpaid under the
Finance Documents or any Ancillary Finance Document,


 


provided that the Agent shall not make any such payments to
any Ancillary Lender prior to the Agent delivering a notice to the Company
pursuant to paragraphs (a) (ii) or (a) (iv) of Clause 33.16
(Acceleration) or any date on which the
Facilities are cancelled pursuant to Clause 18.3
(Change of control).


 


(b)                           The
Agent shall, if so directed by the Majority Lenders, vary the order set out in
paragraphs (a)(ii) to (iv) above.


 


(c)                            Paragraphs
(a) and (b) above will override any appropriation made by an Obligor.


 


40.6                  No
set-off by Obligors


 


All payments to be made by an Obligor under the Finance
Documents shall be calculated and be made without (and free and clear of any
deduction for) set-off or counterclaim.


 


40.7                  Business
Days


 


(a)                            Any
payment which is due to be made on a day that is not a Business Day shall be
made on the next Business Day in the same calendar month (if there is one) or
the preceding Business Day (if there is not).


 


(b)                           During
any extension of the due date for payment of any principal or Unpaid Sum under
this Agreement interest is payable on the principal or Unpaid Sum at the rate
payable on the original due date.


 


40.8                  Currency
of account


 


(a)                            Subject
to paragraphs (b) to (e) below, the Base Currency is the currency of
account and payment for any sum due from an Obligor under any Finance Document.


 


(b)                           A
repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or Unpaid
Sum shall be made in the currency in which that Utilisation or Unpaid Sum is
denominated on its due date.


 


(c)                            Each
payment of interest shall be made in the currency in which the sum in respect
of which the interest is payable was denominated when that interest accrued.


 


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(d)                           Each
payment in respect of costs, expenses or Taxes shall be made in the currency in
which the costs, expenses or Taxes are incurred.


 


(e)                            Any
amount expressed to be payable in a currency other than the Base Currency shall
be paid in that other currency.


 


40.9                  Change
of currency


 


(a)                            Unless
otherwise prohibited by law, if more than one currency or currency unit are at
the same time recognised by the central bank of any country as the lawful
currency of that country, then:


 


(i)                                    any
reference in the Finance Documents to, and any obligations arising under the
Finance Documents in, the currency of that country shall be translated into, or
paid in, the currency or currency unit of that country designated by the Agent
(after consultation with the Company); and


 


(ii)                                 any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the conversion of
that currency or currency unit into the other, rounded up or down by the Agent
(acting reasonably).


 


(b)                           If
a change in any currency of a country occurs, this Agreement will, to the
extent the Agent (acting reasonably and after consultation with the Company)
specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank Market and otherwise
to reflect the change in currency.


 


40.10            Payments
to the Security Agent


 


Notwithstanding any other provision of any Finance Document,
at any time after any Security created by or pursuant to any Security Document
becomes enforceable, the Security Agent may require:


 


(a)                                   any
Obligor to pay all sums due under any Finance Document; or


 


(b)                                  the
Agent to pay all sums received or recovered from an Obligor under any Finance
Document,


 


in each case as the Security Agent may direct for
application in accordance with the terms of the Security Documents.


 


40.11            Disruption
to Payment Systems etc.


 


If either the Agent determines (in its discretion) that a
Disruption Event has occurred or the Agent is notified by the Company that a
Disruption Event has occurred:


 


(a)                                   the
Agent may, and shall if requested to do so by the Company, consult with the
Company with a view to agreeing with the Company such changes to the operation
or administration of the Facilities as the Agent may deem necessary in the
circumstances;


 


(b)                                  the
Agent shall not be obliged to consult with the Company in relation to any
changes mentioned in paragraph (a) if, in its opinion, it is not
practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such changes;


 


(c)                                   the
Agent may consult with the Finance Parties in relation to any changes mentioned
in paragraph (a) but shall not be obliged to do so if, in its opinion, it
is not practicable to do so in the circumstances;


 


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(d)                                 any
such changes agreed upon by the Agent and the Company shall (whether or not it is
finally determined that a Disruption Event has occurred) be binding upon the
Parties as an amendment to (or, as the case may be, waiver of) the terms of the
Finance Documents notwithstanding the provisions of Clause 46 (Amendments and Waivers);


 


(e)                                  the
Agent shall not be liable for any damages, costs or losses whatsoever (including,
without limitation for negligence, gross negligence or any other category of
liability whatsoever but not including any claim based on the fraud of the
Agent) arising as a result of its taking, or failing to take, any actions
pursuant to or in connection with this Clause 40.11; and


 


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


 


41.                        SET-OFF


 


A Finance Party may set off any matured obligation due from
an Obligor under the Finance Documents (to the extent beneficially owned by
that Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or currency
of either obligation.  If the obligations
are in different currencies, the Finance Party may convert either obligation at
a market rate of exchange in its usual course of business for the purpose of
the set-off.


 


42.                        NOTICES


 


42.1                  Communications
in writing


 


Any communication to be made under or in connection with the
Finance Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.


 


42.2                  Addresses


 


The address and fax number (and the department or officer,
if any, for whose attention the communication is to be made) of each Party for
any communication or document to be made or delivered under or in connection
with the Finance Documents is:


 


(a)                                  in
the case of the Company, that identified with its name in the signature pages below;


 


(b)                                 in
the case of each Lender, each Ancillary Lender or any other Original Obligor,
that notified in writing to the Agent on or prior to the date on which it
becomes a Party; and


 


(c)                                  in
the case of the Agent, the Issuing Bank and the Security Agent, that identified
with its name in the signature pages below,


 


or any substitute address, fax number or department or
officer as the Party may notify to the Agent (or the Agent may notify to the
other Parties, if a change is made by the Agent) by not less than five Business
Days’ notice.


 


42.3                  Delivery


 


(a)                            Any
communication or document made or delivered by one person to another under or
in connection with the Finance Documents will only be effective:


 


(i)                                      if
by way of fax, when received in legible form; or


 


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 42.2 (Addresses), if addressed to that
department or officer.


 


(b)                           Any
communication or document to be made or delivered to the Agent or the Security
Agent will be effective only when actually received by the Agent and then only
if it is expressly marked for the attention of the department or officer
identified with its signature below (or any substitute department or officer as
it shall specify for this purpose).


 


(c)                            All
notices from or to an Obligor shall be sent through the Agent.


 


(d)                           Any
communication or document made or delivered to the Company in accordance with
this Clause will be deemed to have been made or delivered to each of the Obligors.


 


42.4                  Notification
of address and fax number


 


Promptly upon receipt of notification of an address and fax
number or change of address or fax number pursuant to Clause 42.2 (Addresses) or changing its own address or
fax number, the Agent shall notify the other Parties.


 


42.5                  Electronic
communication


 


(a)                            Any
communication to be made between the Agent and a Lender or the Company under or
in connection with the Finance Documents may be made by electronic mail or
other electronic means, if the Agent and the relevant Lender or the Company:


 


(i)                                     agree
that, unless and until notified to the contrary, this is to be an accepted form
of communication;


 


(ii)                                  notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by that
means; and


 


(iii)                               notify
each other of any change to their address or any other such information
supplied by them.


 


(b)                           Any
electronic communication made between the Agent and a Lender or the Company
will be effective only when actually received in readable form and in the case
of any electronic communication made by a Lender or the Company to the Agent
only if it is addressed in such a manner as the Agent shall specify for this
purpose.


 


42.6                  English
language


 


(a)                            Any
notice given under or in connection with any Finance Document must be in
English.


 


(b)                           All
other documents provided under or in connection with any Finance Document must
be:


 


(i)                                     in
English; or


 


(ii)                                  if
not in English, and if so required by the Agent, accompanied by a certified
English translation and, in this case, the English translation will prevail
unless the document is a constitutional, statutory or other official document.


 


118

















 


43.                        CALCULATIONS AND CERTIFICATES


 


43.1                  Accounts


 


In any litigation or arbitration proceedings arising out of
or in connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to which
they relate.


 


43.2                  Certificates
and Determinations


 


Any certification or determination by a Finance Party of a
rate or amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.


 


43.3                  Day
count convention


 


Any interest, commission or fee accruing under a Finance
Document will accrue from day to day and is calculated on the basis of the
actual number of days elapsed and a year of 360 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with that
market practice.


 


44.                        PARTIAL INVALIDITY


 


If, at any time, any provision of the Finance Documents is
or becomes illegal, invalid or unenforceable in any respect under any law of
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be affected
or impaired.


 


45.                        REMEDIES AND WAIVERS


 


No failure to exercise, nor any delay in exercising, on the
part of any Finance Party, any right or remedy under the Finance Documents
shall operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise of any
other right or remedy.  The rights and
remedies provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.


 


46.                        AMENDMENTS AND WAIVERS


 


46.1                  Required
consents


 


(a)                            Subject
to Clause 46.2 (Exceptions) any
term of the Finance Documents may be amended or waived only with the consent of
the Majority Lenders and the Obligors and any such amendment or waiver will be
binding on all Parties.


 


(b)                           The
Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this Clause.


 


46.2                  Exceptions


 


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


 


(i)                                     the
definition of “Majority Lenders” in Clause 8.1 (Definitions);


 


(ii)                                  an
extension to the date of payment of any amount under the Finance Documents
(other than an amount owing under Clause 18.5 (Mandatory
prepayment — Net Sale Proceeds) or Clause 18.7 (Mandatory
prepayment — Insurance Proceeds);


 


119

















 


(iii)                              a
reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission payable;


 


(iv)                             an
increase in or an extension of any Commitment;


 


(v)                                a
change to the Borrowers or Guarantors other than in accordance with Clause 35 (Changes to the  Obligors);


 


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


 


(vii)                          Clause
9.2 (Finance Parties’ rights and obligations),
Clause 11.3 (Change of Control), Clause 34 (Changes to the Lenders), Clause 39 (Sharing among the Finance Parties) or this
Clause 46; or


 


(viii)                       the
release of any Security created pursuant to any Security Document or of any
asset charged thereunder (except as provided in any Security Document or made
pursuant to a Permitted Disposal),


 


shall not be made without the prior consent of all the
Lenders.


 


(b)                           An
amendment or waiver which relates to the rights or obligations of the Agent,
the Security Agent, the Issuing Bank, any Ancillary Lender or the Arranger may
not be effected without the consent of the Agent, the Security Agent, the
Issuing Bank, any Ancillary Lender or, as the case may be the Arranger.


 


47.                        COUNTERPARTS


 


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


 


120

















 


SECTION 12


 


GOVERNING LAW
AND ENFORCEMENT


 


48.                        GOVERNING LAW


 


This Agreement is governed by English law.


 


49.                        ENFORCEMENT


 


49.1                  Jurisdiction


 


(a)                            The
courts of England have exclusive jurisdiction to settle any dispute arising out
of or in connection with this Agreement (including a dispute regarding the
existence, validity or termination of this Agreement) (a “Dispute”).


 


(b)                           The
Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.


 


(c)                            This
Clause 49.1 is for the benefit of the Finance Parties only.  As a result, no Finance Party shall be
prevented from taking proceedings relating to a Dispute in any other courts
with jurisdiction.  To the extent allowed
by law, the Finance Parties may take concurrent proceedings in any number of
jurisdictions.


 


49.2                  Service
of process


 


Without prejudice to any other mode of service allowed under
any relevant law, each Obligor (other than an Obligor incorporated in England
and Wales):


 


(a)                                  irrevocably
appoints Clifford Chance Secretaries Limited at 10, Upper Bank Street, London
E14 5JJ as its agent for service of process in relation to any proceedings
before the English courts in connection with any Finance Document; and


 


(b)                                 agrees
that failure by a process agent to notify the relevant Obligor of the process
will not invalidate the proceedings concerned.


 


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


 


121

















 


SCHEDULE 4




THE
ORIGINAL PARTIES


 


PART I


 


THE ORIGINAL OBLIGORS


 


	
  Name of Original Borrower

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  SACHTLEBEN CHEMIE GMBH

  	
   

  	
  HR B 1 96 69

  
	
   

  	
   

  	
   

  
	
  FINNISH HOLDCO

  	
   

  	
  2196924-0

  
	
   

  	
   

  	
   

  
	
  KEMIRA PIGMENTS OY

  	
   

  	
  0948159-2

  



 


	
  Name of Original Guarantor

  	
   

  	
  Registration number (or equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  SACHTLEBEN CHEMIE GMBH

  	
   

  	
  HR B 1 96 69

  
	
   

  	
   

  	
   

  
	
  FINNISH HOLDCO

  	
   

  	
  2196924-0

  
	
   

  	
   

  	
   

  
	
  KEMIRA PIGMENTS OY

  	
   

  	
  0948159-2

  



 


122
















 


PART II




THE ORIGINAL LENDERS


 


	
  Name of Original Lender

  	
   

  	
  Facility A Commitment

  	
   

  	
  Facility B Commitment

  	
   

  
	
   

  	
   

  	
  (€)

  	
   

  	
  (€)

  	
   

  
	
  Skandinaviska
  Enskilda Banken AB (publ)

  	
   

  	
  150,000,000

  	
   

  	
  15,000,000

  	
   

  
	
  Nordea Bank Finland Plc

  	
   

  	
  150,000,000

  	
   

  	
  15,000,000

  	
   

  



 


123

















 


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


 


124

















 


Sachtleben Chemie GmbH


 


By: DR MARTIN BURGHOLTE                         PROF
WOLF-DIETER GRIEBLER


 


 


White Pigments Holding Oy


 


By: UDO PINGER


 


 


Kemira Pigments Oy


 


By: HANNU VIROLAINEN


 


 


The Arranger


 


Merchant Banking, Skandinaviska Enskilda Banken AB (publ)


 


By: MALCOLM CROW                      ÅSA
SAMUELSSON


 


 


Nordea Bank Finland plc


 


By: ESA RAITANEN                           JUHA-MATTI
PELTOMAA


 


 


The Original Lenders


 


Skandinaviska Enskilda Banken AB (publ)


 


By: MALCOLM CROW                      ÅSA
SAMUELSSON


 


 


Nordea Bank Finland Plc


 


By: ESA RAITANEN                           JUHA-MATTI
PELTOMAA


 


125

















 


The Agent


 


Merchant Banking, Skandinaviska Enskilda Banken AB (publ)


 


	
  Address:

  	
  Skandinaviska Enskilda Banken AB
  (publ)

  
	
   

  	
  Rissneleden 110

  
	
   

  	
  SE-106 40 Stockholm

  
	
   

  	
   

  
	
  Attention:

  	
  SCO

  
	
   

  	
   

  
	
  E-mail:

  	
  sco@seb.se

  
	
   

  	
   

  
	
  Fax number:

  	
  + 46 8 611 03 84

  



 


	
  With a copy to:

  	
   

  
	
  Address:

  	
  Loan Agency

  
	
   

  	
  Capital Markets, SEB

  
	
   

  	
  Scandinavian House

  
	
   

  	
  2 Cannon Street

  
	
   

  	
  London EC4M 6XX

  
	
   

  	
   

  
	
  E-mail:

  	
  agency@seb.co.uk

  
	
  Fax number:

  	
  + 44 207 329 2304

  



 


	
  By: MALCOLM CROW

  	
  ÅSA SAMUELSSON

  



 


 


The  Security Agent


 


Merchant Banking, Skandinaviska Enskilda Banken AB (publ)


 


	
  Address:

  	
  Loan Agency

  
	
   

  	
  Capital Markets, SEB

  
	
   

  	
  Scandinavian House

  
	
   

  	
  2 Cannon Street

  
	
   

  	
  London EC4M 6XX

  
	
   

  	
   

  
	
  E-mail:

  	
  agency@seb.co.uk

  
	
  Fax number:

  	
  + 44 207 329 2304

  
	
   

  	
   

  
	
  Attention:

  	
  Loan Agency

  



 


	
  By: MALCOLM CROW

  	
  ÅSA SAMUELSSON

  



 


 


The  Issuing Bank


 


Merchant Banking, Skandinaviska Enskilda Banken AB (publ)


 


	
  By: MALCOLM CROW

  	
  ÅSA SAMUELSSON

  



 


126

















 


SIGNATURES


 


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:

  	
  /s/ MARCUS BRUNE

  	
   

  	
  /s/ UDO PINGER

  
	
   

  	
  Marcus Brune

  	
   

  	
  Udo Pinger

  



 


 


The  Original Borrowers


 


Deukalion Einhundertvierundzwanzigste
Vermögensverwaltungs - GmbH


 


	
  By:

  	
  /s/ MARCUS BRUNE

  	
   

  	
  /s/ UDO PINGER

  
	
   

  	
  Marcus Brune

  	
   

  	
  Udo Pinger

  



 


 


Sachtleben Chemie GmbH


 


	
  By:

  	
  /s/ WOLF-DIETER GRIEBLER

  	
   

  	
  /s/ ANDREAS GRUENEWALD

  
	
   

  	
  Wolf-Dieter Griebler

  	
   

  	
  Andreas Gruenewald

  



 


 


White Pigments Holding Oy


 


	
  By:

  	
  /s/ CLEMONS ROLLMANN

  	
   

  	
   

  
	
   

  	
  Clemons Rollmann

  	
   

  	
   

  



 


 


Kemira Pigments Oy


 


	
  By:

  	
  /s/ KLAUS KORHOPEN

  	
   

  	
  /s/ TERHI ILVONEN

  
	
   

  	
  Klaus Korhopen

  	
   

  	
  Terhi Ilvonen

  



 


 


The  Original Guarantors


 


Deukalion Einhundertvierundzwanzigste
Vermögensverwaltungs - GmbH


 


	
  By:

  	
  /s/ MARCUS BRUNE

  	
   

  	
  /s/ UDO PINGER

  
	
   

  	
  Marcus Brune

  	
   

  	
  Udo Pinger

  



 


127

















 


Sachtleben Chemie GmbH


 


	
  By:

  	
  /s/ WOLF-DIETER GRIEBLER

  	
   

  	
  /s/ ANDREAS GRUENEWALD

  
	
   

  	
  Wolf-Dieter Griebler

  	
   

  	
  Andreas Gruenewald

  



 


 


White Pigments Holding Oy


 


	
  By:

  	
  /s/ CLEMONS ROLLMANN

  	
   

  	
   

  
	
   

  	
  Clemons Rollmann

  	
   

  	
   

  



 


 


Kemira Pigments Oy


 


	
  By:

  	
  /s/ KLAUS KORHOPEN

  	
   

  	
  /s/ TERHI ILVONEN

  
	
   

  	
  Klaus Korhopen

  	
   

  	
  Terhi Ilvonen

  



 


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:

  	
  /s/ MICHAEL I DICKS

  	
   

  	
  /s/ ÅSA SAMUELSSON

  
	
   

  	
  Michael I. Dicks

  	
   

  	
  Åsa Samuelsson

  



 


 


128