exv10w1



 







Exhibit 10.1

Execution Version



Dated
March 15, 2006


 


US$165,000,000

FACILITY AGREEMENT



between



Atmel SARL

as the Borrower



Atmel Corporation

and

Atmel Switzerland SARL

as the Guarantors



Banc of America Securities LLC

as Sole Lead Arranger and Book Manager



The Financial Institutions listed in Schedule 1

as Original Lenders



and



Bank of America, N.A.

as Facility Agent and Security Agent








99 Bishopsgate 

London

EC2M 3XF

Tel: 020-7710-1000

Fax: 020-7374-4460





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	1.

	 	DEFINITIONS AND INTERPRETATION
	 	 	1	 
	2.

	 	THE REVOLVING FACILITY
	 	 	25	 
	3.

	 	CONDITIONS PRECEDENT
	 	 	26	 
	4.

	 	UTILISATION – LIBOR LOANS
	 	 	27	 
	5.

	 	UTILISATION – REFERENCE RATE LOANS
	 	 	28	 
	6.

	 	REPAYMENT
	 	 	29	 
	7.

	 	PREPAYMENT
	 	 	29	 
	8.

	 	CANCELLATION
	 	 	30	 
	9.

	 	INTEREST PERIODS
	 	 	31	 
	10.

	 	CALCULATION AND PAYMENT OF INTEREST
	 	 	31	 
	11.

	 	COMMISSIONS AND FEES
	 	 	33	 
	12.

	 	CHANGES IN CIRCUMSTANCES
	 	 	33	 
	13.

	 	TAXES
	 	 	36	 
	14.

	 	OTHER INDEMNITIES
	 	 	38	 
	15.

	 	GUARANTEE AND INDEMNITY
	 	 	39	 
	16.

	 	SECURITY
	 	 	44	 
	17.

	 	REPRESENTATIONS AND WARRANTIES
	 	 	45	 
	18.

	 	INFORMATION UNDERTAKINGS
	 	 	54	 
	19.

	 	AFFIRMATIVE UNDERTAKINGS
	 	 	60	 
	20.

	 	NEGATIVE UNDERTAKINGS
	 	 	64	 
	21.

	 	FINANCIAL COVENANTS
	 	 	67	 
	22.

	 	EVENTS OF DEFAULT
	 	 	67	 
	23.

	 	ROLE OF THE AGENTS AND THE ARRANGER
	 	 	72	 
	24.

	 	SHARING AMONG THE LENDERS
	 	 	78	 
	25.

	 	HEDGING BANKS
	 	 	79	 
	26.

	 	CHANGES TO THE LENDERS
	 	 	80	 
	27.

	 	ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
	 	 	83	 
	28.

	 	PAYMENTS
	 	 	83	 
	29.

	 	SET-OFF
	 	 	85	 
	30.

	 	COSTS AND EXPENSES
	 	 	85	 
	31.

	 	AMENDMENTS AND WAIVERS
	 	 	86	 
	32.

	 	REMEDIES AND WAIVERS
	 	 	87	 
	33.

	 	NOTICES
	 	 	88	 
	34.

	 	CALCULATIONS AND CERTIFICATES
	 	 	89	 
	35.

	 	CONFIDENTIALITY
	 	 	89	 
	36.

	 	ENGLISH LANGUAGE
	 	 	90	 










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	37.

	 	PARTIAL INVALIDITY
	 	 	90	 
	38.

	 	COUNTERPARTS
	 	 	90	 
	39.

	 	GOVERNING LAW
	 	 	90	 
	40.

	 	JURISDICTION
	 	 	90	 
	SCHEDULE I THE LENDERS	 	 	92	 
	 

	 	THE ORIGINAL LENDERS AND COMMITMENTS
	 	 	92	 
	SCHEDULE 2 CONDITIONS PRECEDENT	 	 	93	 
	SCHEDULE 3 REQUESTS	 	 	97	 
	SCHEDULE 4 MANDATORY COST FORMULAE	 	 	99	 
	SCHEDULE 5 FORM OF TRANSFER CERTIFICATE	 	 	102	 
	SCHEDULE 6 FORM OF ACCESSION AGREEMENT	 	 	104	 
	SCHEDULE 7 FORM OF COMPLIANCE CERTIFICATE	 	 	106	 
	SCHEDULE 8 FORM OF FORMALITIES CERTIFICATE	 	 	108	 
	SCHEDULE 9 FORM OF BORROWING BASE CERTIFICATE	 	 	111	 
	SCHEDULE 10 TIMETABLES	 	 	113	 





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THIS
FACILITY AGREEMENT (this “Agreement”) is made on
15 March, 2006.




BETWEEN:





	(1)	 	ATMEL SARL (a limited liability company (société à responsabilité limitée) organised under
the laws of Switzerland with its registered office at 41, route des Arsenaux, CH-1700
Fribourg, Switzerland) as the borrower hereunder (the “Borrower”);
	 
	(2)	 	ATMEL CORPORATION (a corporation incorporated in the State of Delaware in the USA) (the “US
Parent”) and ATMEL SWITZERLAND SARL (a limited liability company incorporated in Switzerland)
(the “Swiss Parent” and, together with the US Parent, the “Guarantors” and each a
“Guarantor”);
	 
	(3)	 	BANC OF AMERICA SECURITIES LLC as sole lead arranger of the Facility (in this capacity, the
“Arranger”);
	 
	(4)	 	THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 (THE ORIGINAL LENDERS AND COMMITMENTS) as
original lenders (in this capacity, the “Original Lenders”);
	 
	(5)	 	BANK OF AMERICA, N.A. as facility agent for the Lenders (as defined below) (in this capacity,
the “Facility Agent”); and
	 
	(6)	 	BANK OF AMERICA, N.A. as security agent and/or, as the case may be, trustee for the Finance
Parties (as defined below) (in this capacity, the “Security Agent”).





IT IS AGREED as follows:





	1.	 	DEFINITIONS AND INTERPRETATION
	 
	1.1	 	Definitions
	 
	 	 	In this Agreement the following terms have the meanings given to them in this Clause 1.1,
except where the context otherwise requires.
	 
	 	 	“Accession Agreement” means an agreement substantially in the form of Schedule 6 (Form of
Accession Agreement) pursuant to which a Lender accedes to this Agreement in its capacity as
a Hedging Bank.
	 
	 	 	“Account Debtor” means a person obligated in any way on, or in connection with, a Receivable
in any jurisdiction.
	 
	 	 	“Accounting Reference Date” means 31 December in each year.
	 
	 	 	“Accounting Reference Period” means each annual period ending on the Accounting Reference
Date.
	 
	 	 	“Additional Costs Rate” has the meaning given to it in Schedule 4 (Mandatory Costs
Formulae).
	 
	 	 	“Advance Percentage” means, in respect of any Eligible Receivable, 85%.
	 
	 	 	“Affiliate” means, with respect to any person, any other person directly or indirectly
controlling, controlled and/or managed by, or under direct or indirect common control with,
such person or (with reference to any person other than a Lender) which owns, directly or
indirectly, 50% or more of the outstanding equity interest of such person and, for purposes
of




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	 	 	calculating the Fixed Charge Coverage Ratio in accordance with Clause 21 (Financial
Covenants) only, any person that would be considered to be an affiliate of the US Parent
under Rule 144(a) of the Rules and Regulations of the Securities and Exchange Commission, as
in effect on the date hereof.
	 
	 	 	“Agents” means collectively the Facility Agent and the Security Agent; and “Agent” shall be
a reference to either of them as the context may require.
	 
	 	 	“Anti-Terrorism Laws” means any laws applicable to the Obligors and their Subsidiaries
relating to terrorism or money laundering, including, without limitation, Executive Order
No. 13224 and the USA Patriot Act.
	 
	 	 	“Approved Accounting Principles” means accounting principles, standards and practices
generally accepted in the United States from time to time and consistently applied.
	 
	 	 	“Approved Governing Law” means the governing laws of any of:






	 	(a)	 	the jurisdiction of the Borrower;
	 
	 	(b)	 	the States of California, Delaware, Texas, New York, North Carolina or Illinois;
	 
	 	(c)	 	England and Wales including laws applicable generally throughout the United
Kingdom; or
	 
	 	(d)	 	any other jurisdiction requested by the Borrower in writing and consented to by
the Facility Agent; provided that the Facility Agent shall grant its consent to the
inclusion of such additional jurisdiction to the extent that the Finance Parties will
obtain (in the opinion of the Facility Agent (acting reasonably) and supported by any
professional opinions requested by it) fully perfected first priority security in
respect of Receivables governed by such law by virtue of the execution of additional
local law governed security documents (if required) or otherwise;
	 
	 	 	 	provided that in each of sub-clauses (c), (d) and (e) above the relevant Account
Debtor in respect of the Receivable arising under the laws of the jurisdiction so
listed is also (i) located, (ii) resident or (iii) otherwise has a local legal
presence against which legal proceedings can be commenced, in such jurisdiction (or
such other jurisdiction as the Facility Agent shall agree).






	 	 	“Auditors” means one of PricewaterhouseCoopers or another internationally recognised firm of
independent auditors licensed to practice in the Relevant Jurisdiction of the US Parent
which has been appointed by the US Parent to audit consolidated annual financial statements
of members of the Group.
	 
	 	 	“Authorised Signatory” in relation to any Obligor and any communication to be made or
document to be executed or certified by that Obligor means, at any time, any person:






	 	(a)	 	who is at such time duly authorised by a resolution of the board of directors
of that Obligor or by virtue of his appointment by that Obligor to a particular office
to make that communication or to execute or certify that document on behalf of that
Obligor and in respect of whom the Facility Agent has received a certificate of a
director or the secretary or assistant secretary of that Obligor setting out the name
and signature of that person and confirming that person’s authority so to act; and






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	 	(b)	 	in respect of whom no notice has been received by the Facility Agent
from that Obligor to the effect that that person is no longer an Authorised Signatory
for that Obligor.






“Availability Period” means, the period from opening of general banking business in London
on the date of this Agreement to close of general banking business in London on the date
that is one month prior to the Maturity Date.




“Available Cash” has the meaning given to it in Clause 19.14 (Minimum Available Cash).




“Available Commitment” means a Lender’s Commitment under the Revolving Facility minus:




	 	(a)	 	its participation in any outstanding Utilisations under the Revolving Facility;
and
	 
	 	(b)	 	its participation in any Utilisations that are due to be made under the
Revolving Facility on or before the proposed Utilisation Date,






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




“Available Facility” means, in relation to the Revolving Facility, the aggregate for the
time being of all Lenders’ Available Commitments in respect of the Revolving Facility.




“Bankruptcy Code” means title 11 of the United States Code, as amended from time to time.




“Base Currency” means US Dollars.




“Base Financial Statements” means:




	 	(a)	 	the (i) audited annual consolidated financial statements of the US Parent and
the Group and (ii) the Borrower Reporting Package in each case, for and as at the end
of the Financial Year of the Group ended 31 December, 2004;
	 
	 	(b)	 	the Borrower Reporting Package for and as at the end of the month ended 31
January, 2006; and
	 
	 	(c)	 	the projections of the Group’s financial condition, results of operations and
cashflow calculated on a quarterly basis for the Financial Year ending December 31,
2006 and on annual basis of the Financial Years ending December 31, 2007 and December
31, 2008.






“Blocked Person” means (a) a person that is listed in the annex to, or is otherwise subject
to the provisions of, Executive Order No. 13224; (b) a person owned or controlled by, or
acting for or on behalf of, any person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224; (c) a person or entity with which
any bank or other financial institution is prohibited from dealing or otherwise engaging in
any transaction by any Anti-Terrorism Law; (d) a person or entity that commits, threatens or
conspires to commit or supports “terrorism” as defined in Executive Order No. 13224; (e) a
person or entity that is named as a “specially designated national” on the most current list
at any time published by the U.S. Treasury Department Office of Foreign Asset Control (OFAC)
at its official website or any replacement website or other replacement official publication
of such list; (f) a person or entity who is affiliated with a person or entity listed above;
or (g) an agency of the government of, an organisation directly or indirectly controlled by,
or a person resident in a country on any official list maintained by OFAC.



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“Borrower Reporting Package” means the unaudited financial statements or reports of the
Borrower for the relevant period comprising at least an unaudited balance sheet and profit
and loss account.




“Borrowing Base Availability” means at any time but with reference to the most recently
delivered Borrowing Base Certificate, an amount equal to the product of the Advance
Percentage and the Dollar Equivalent of the face amount of all its Eligible Receivables
(calculated net of all finance charges, late fees and other fees which are unearned, sales,
excise or similar taxes and VAT and credits or allowances granted at such time)
minus, without duplication, (a) any Reserves then in effect with respect to such
Eligible Receivables and (b) the Collections Reserve.




“Borrowing Base Certificate” means a certificate from the Borrower substantially in the form
of Schedule 9 (Form of Borrowing Base Certificate); provided that the
Facility Agent, shall have the right to review and adjust, in the exercise of its sole
discretion acting in good faith, any such calculation (i) to reflect its estimate of
declines in value of any of the Collateral described therein, and (ii) to the extent that
such calculation is not in accordance with this Agreement.




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




	 	(a)	 	the interest (excluding 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
Overdue Amount to the last day of the current Interest Period in respect of that Loan
or Overdue Amount, had the principal amount or Overdue Amount 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 Overdue Amount received by it on deposit with a leading bank
in the London 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 London and New York.




“Cancellation Fee” has the meaning given to it in Clause 11.5 (Cancellation Fee).




“Capitalized Leases” means leases under which the US Parent or any of its Subsidiaries is
the lessee or obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in accordance with
the Approved Accounting Principles.




“Cash Collateral Account” means any account with either Agent or any bank selected by the
Agents which is opened in the name of an Obligor into which sums are to be paid in
accordance with Clause 15.8 (Appropriations) or in the provision of cash cover, held as
security and subject to security documentation in such form as the Agents shall require for
the obligations of any Obligor under any Finance Document.




“Cash Equivalent” means at any time:




	 	(a)	 	certificates of deposit maturing within one year after the relevant date of
calculation and issued by a bank or financial institution which has a rating for its
long-term unsecured and non-credit enhanced debt obligations of A-1 or higher by
Standard &




4









 






	 	 	 	Poor’s Rating Services or Fitch Ratings Ltd. or P-1 or higher by Moody’s Investor
Services Limited;






	 	(b)	 	any investment in marketable debt obligations issued or guaranteed by the
government of the United States of America or the United Kingdom or by an
instrumentality or agency of any of it having an equivalent credit rating, maturing
within one year after the relevant date of calculation and not convertible or
exchangeable to any other security;
	 
	 	(c)	 	commercial paper not convertible or exchangeable to any other security:






	 	(i)	 	for which a recognised trading market exists;
	 
	 	(ii)	 	issued by an issuer incorporated in the United States of
America or the United Kingdom;
	 
	 	(iii)	 	which matures within one year after the relevant date of
calculation; and
	 
	 	(iv)	 	which has a credit rating of either A-1 or higher by Standard &
Poor’s Rating Services or Fitch Ratings Ltd. or P-1 or higher by Moody’s
Investor Services Limited, or, if no rating is available in respect of the
commercial paper, the issuer of which has, in respect of its long-term
unsecured and non-credit enhanced debt obligations, an equivalent rating;






	 	(d)	 	any investment accessible within 30 days in money market funds which have a
credit rating of either A-1 or higher by Standard & Poor’s Rating Services or Fitch
Ratings Ltd. or P-1 or higher by Moody’s Investor Services Limited and which invest
substantially all their assets in securities of the types described in paragraphs (a)
to (c) above; or
	 
	 	(e)	 	any other debt security approved by the Majority Lenders.






“Casualty Event” means, with respect to any property (including any interest in property)
of US Parent or any Subsidiary of the US Parent, any loss of, damage to, or condemnation or
other taking of, such property for which US Parent or such Subsidiary receives insurance
proceeds, proceeds of a condemnation award or other compensation.




“Change of Control” shall mean:




	 	(a)	 	any change in the legal or beneficial ownership of the shares or other equity
interests of the US Parent after the date hereof or entry into any agreement which, in
either case, results, directly or indirectly in any person, its Affiliates and/or any
persons acting in concert with or otherwise under common control of any person:






	 	(i)	 	owning 50% or more of the issued share capital or other equity
interests of the US Parent; or
	 
	 	(ii)	 	controlling, or being able to control, the composition of the
US Parent’s board of directors; or






	 	(b)	 	any event, transaction or occurrence resulting in the US Parent ceasing to:






	 	(i)	 	directly or indirectly own 100% of the issued share capital of
the Swiss Parent; or




5









 












	 	(ii)	 	directly or indirectly own all share capital having the right
to cast all of the votes capable of being cast in general meetings of the Swiss
Parent or otherwise to exercise full management control; or
	 
	 	(iii)	 	be able to appoint all of the managers (gérants) of the Swiss
Parent; or






	 	(c)	 	any event, transaction or occurrence resulting in the Swiss Parent ceasing to:






	 	(i)	 	directly or indirectly own 100% of the issued share capital of
the Borrower; or
	 
	 	(ii)	 	directly or indirectly own all share capital in the Borrower,
having the right to cast all of the votes capable of being cast in general
meetings of the Borrower or otherwise to exercise full management control; or
	 
	 	(iii)	 	be able to appoint all of the managers (gérants) of the
Borrower.






“Code” means the US Internal Revenue Code of 1986 (or any successor legislation thereto) as
amended from time to time (or any successor legislation).




“Collateral” means all assets and interests in assets and proceeds thereof now owned or
hereafter acquired by any Obligor in or upon which an Encumbrance is granted under any of
the Security Documents.




“Collection Account” means an account or accounts established and maintained with the
Facility Agent or its Affiliate or the Security Agent or its Affiliate for the purpose of
receiving all proceeds of Receivables of the Borrower.




“Collections Reserve” means, in the event that the Borrower is delivering Borrowing Base
Certificates in accordance with Clause 18.7 (Borrowing Base Availability Determination):




	 	(a)	 	on a monthly basis, US$20,000,000;
	 
	 	(b)	 	on at least a weekly basis, US$10,000,000; and
	 
	 	(c)	 	on at least a daily basis, zero,






or such other amount as may be specified by the Facility Agent in good faith acting in
accordance with its customary business practices to reflect the Facility Agent’s
determination of the impact of the intra-month collection of Receivables on the Collateral
coverage granted to the Finance Parties.




“Commitments” means, in relation to an Original Lender, the amount set out opposite its name
in Schedule 1 (The Original Lenders and Commitments) and, in relation to any other Lender,
the amounts or the total amount of the Commitments transferred to it pursuant to one or more
Transfer Certificate(s) or other document pursuant to which it becomes a party to, or
acquires rights under, this Agreement, less that part of such Commitments transferred by a
Lender in accordance with Clause 26 (Changes to the Lenders) and that part of such
Commitments which has been cancelled, reduced or terminated in accordance with the terms of
this Agreement.




“Compliance Certificate” means a certificate substantially in the form set out in Schedule 7
(Form of Compliance Certificate).




“Confidential Information” means any information relating to the Obligors or the Group
provided to any Finance Party or any Affiliate of any Finance Party (or any advisor
thereof),



6









 







under or in connection with any Finance Document, including any information provided orally
and any document, file or any other way of representing or recording information which
contains or is derived from such information other than:




	 	(a)	 	information that is or becomes public knowledge other than as a direct or
indirect breach of Clause 35 (Confidentiality); or






	 	(b)	 	information known, in the possession of, or otherwise lawfully obtained by any
Finance Party or any Affiliate of any Finance Party (or any advisor thereof) prior to
the date such information is disclosed by the Obligors,






provided that such information is not from a source which is connected with the Group and
which has not been obtained in violation of, and is not otherwise subject to, any obligation
of confidentiality.




“Consolidated EBITDA” means, for any period:




	 	(a)	 	the net income (or deficit) of the US Parent and its Subsidiaries (determined
on a consolidated basis without duplication in accordance with Approved Accounting
Principles) for such period, plus
	 
	 	(b)	 	to the extent deducted in calculating net income: (i) income taxes accrued
during such period, (ii) interest and fees in respect of Indebtedness (including
amounts accrued or paid in respect of Derivative Agreements) during such period
(whether or not actually paid in cash during such period), (iii) depreciation,
amortization and other non-cash charges accrued for such period and (iv) except to the
extent paid in cash by the US Parent and its Subsidiaries, loss attributable to equity
in Affiliates which are not wholly-owned Subsidiaries for such period, minus
	 
	 	(c)	 	to the extent such items were added in calculating net income:






	 	(i)	 	extraordinary or unusual gains during such period; and
	 
	 	(ii)	 	proceeds received during such period in respect of Casualty
Events and dispositions of any property (other than dispositions in the
ordinary course of business on ordinary business terms), plus






	 	(d)	 	to the extent such items were deducted in calculating net income, extraordinary
or unusual non-cash losses during such period.






“Consolidated Interest Expense” means, for any period, the sum, without duplication, for the
US Parent and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with Approved Accounting Principles), of the following:




	 	(a)	 	all interest in respect of Indebtedness required to be paid or accrued during
such period (whether or not actually paid during such period), but excluding
capitalized debt acquisition costs (including fees and expenses related to this
Agreement), plus
	 
	 	(b)	 	the net amounts payable (or minus the net amounts receivable) in respect of
Derivative Agreements accrued during such period (whether or not actually paid or
received during such period) excluding reimbursement of legal fees and other similar
transaction costs and further excluding payments required by reason of the early
termination of Derivative Agreements in effect on the date hereof.




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“Convertible Notes” means the zero coupon convertible notes due 2021 issued by the US
Parent.




“Dangerous Substance” means any radioactive emissions, any natural or artificial substance
(whether in the form of a solid, liquid, gas or vapour) the generation, transportation,
storage, treatment, use, disposal or presence of which (whether alone or in combination with
any other substance) including any controlled, special, hazardous, toxic, radioactive or
dangerous substance or waste, gives rise to a risk of causing harm to man or any other
living organism or damaging the Environment or public health or welfare.




“Default” means (a) any Event of Default, and (b) any event or circumstance specified in
Clause 22 (Events of Default) which may (with the lapse of time, the giving of notice, the
making of any determination under the Finance Documents or any combination of the foregoing)
be or become an Event of Default.




“Default Rate” shall have the meaning given to such term in Clause 10.3 (Default Interest).




“Derivative Agreement” means any forward contract, futures contract, swap, option or other
similar agreement or arrangement (including, without limitation, caps, floors, collars and
similar agreements), the value of which is dependent upon interest rates, currency exchange
rates, commodities or other indices (including foreign exchange lines).




“Disposal” means a sale, transfer or other disposal (including by way of lease, sale and
lease back, share or partnership interest issuance or allotment factoring or loan or
otherwise) by a person of all or part of its assets, undertaking or business, whether by one
transaction or a series of transactions, whether voluntary or involuntary, and whether at
the same time or over a period of time.




“Dollar Equivalent” means, at any date of determination thereof with respect to any currency
other than Dollars, an amount in Dollars equivalent to such face amount calculated at the
rate of exchange quoted by the Facility Agent on such date of determination (at the hour on
such date of determination at which it customarily makes such determination) to prime banks
in the interbank market where its foreign currency exchange operations in respect of such
currency are then being conducted for the spot purchase of such currency with Dollars.




“EC Treaty” means the Treaty establishing the European Community, as amended from time to
time.




“Eligible Jurisdictions” means any member state of the European Union (as constituted prior
to 1 May 2004), Canada (other than the Province of Newfoundland), Japan, Switzerland,
Singapore, Norway, Hong Kong SAR, South Korea, Taiwan and Malaysia.




“Eligible Receivable” means in relation to the Borrower the gross outstanding balance of its
Receivables arising out of legally valid and binding sales governed by an Approved Governing
Law of merchandise, goods or services in the ordinary course of business, which are made by
it to a person that is not another Obligor, other member of the Group or an Affiliate
thereof (or an agent, officer or employee of any such person), that constitute Collateral in
which the Security Agent has a fully perfected first priority Encumbrance; provided,
however, that a Receivable shall in no event be an Eligible Receivable if:




	 	(a)	 	such Receivable is more than (i) 60 days past due according to the original
terms of sale or (ii) more than 120 days past the original invoice date thereof; or




8









 












	 	(b)	 	any representation, warranty, covenant or agreement contained in any Finance
Document with respect to such specific Receivable is not true and correct in any
material respect in relation to such Receivable; or
	 
	 	(c)	 	the Account Debtor on such Receivable has disputed liability or made any claim
with respect to any other Receivable due from such Account Debtor to the Borrower but
only to the extent of such dispute or claim; or
	 
	 	(d)	 	the Account Debtor on such Receivable has:






	 	(i)	 	filed (or taken any step with respect thereto) a petition or
application for bankruptcy or any other relief under any law or regulation
relating to bankruptcy, insolvency, reorganisation or relief of debtors or laws
of equivalent effect in any jurisdiction;
	 
	 	(ii)	 	made an assignment for the benefit of creditors;
	 
	 	(iii)	 	had filed against it any petition or application for relief
under any law relating to bankruptcy, insolvency, reorganisation or relief of
debtors or laws of equivalent effect in any jurisdiction;
	 
	 	(iv)	 	has failed, suspended business operations, become insolvent, is
unable to pay its debts as they fall due, called a meeting of its creditors for
the purpose of obtaining any financial concession or accommodation; or
	 
	 	(v)	 	had or suffered a receiver, administrator, manager or a trustee
or any equivalent official in any jurisdiction to be appointed (on an interim
or temporary basis or otherwise) for all or a significant portion of its assets
or affairs; or






	 	(e)	 	the Account Debtor on such Receivable or any of its Affiliates is also a
supplier to or creditor of the Borrower, but only to the extent of the Borrower’s
obligations to such Account Debtor; or
	 
	 	(f)	 	the sale represented by such Receivable is to an Account Debtor located outside
the Eligible Jurisdictions, except to the extent that the Facility Agent is in receipt
of financial information detailing such Receivable reasonably acceptable to it and the
Facility Agent is satisfied that it can obtain a fully perfected first priority
Encumbrance in respect of such Receivable in form and substance satisfactory to it;
provided that at no time shall the aggregate net amount of Eligible Receivables owing
by Account Debtors located outside Eligible Jurisdictions exceed the Dollar Equivalent
of the lesser of (i) US$11,750,000; or (ii) 20% of the total aggregate amount of
Eligible Receivables.
	 
	 	(g)	 	the sale to such Account Debtor on such Receivable is on a bill and hold,
guaranteed sale, cash sale, sale and return, sale on approval, or consignment or other
repurchase or return basis or has been billed but not shipped or otherwise dispatched;
or
	 
	 	(h)	 	such Receivable is subject to an Encumbrance in favour of any person other than
the Security Agent for the benefit of the Finance Parties or all Lenders; or
	 
	 	(i)	 	such Receivable is subject to any deduction, set-off, rebate, marketing and
promotion allowance, credit note, counterclaim, return privilege, extended retention of
title or other conditions other than volume sales discounts given in the ordinary
course of the Borrower’s business but only to the extent of such deduction, set-off,
rebate,




9









 






	 	 	 	marketing and promotion allowance, credit note, counterclaim, return privilege,
extended retention of title or other conditions; or






	 	(j)	 	the Account Debtor on such Receivable is a Governmental Authority; or
	 
	 	(k)	 	all the Receivables of any Account Debtor in respect of whom 50% or more of the
outstanding Receivables have become, or have been determined by the Facility Agent, in
accordance with the provisions hereof to be, ineligible; or
	 
	 	(l)	 	the sale represented by such Receivable is denominated in a currency other than
Euro, US Dollars, Swiss Francs, Japanese Yen, Hong Kong Dollars, British Pounds
Sterling or such other currency as the Facility Agent shall agree; or
	 
	 	(m)	 	such Receivable is not evidenced by an invoice or other writing (including by
way of electronic communication) in form reasonably acceptable to the Facility Agent;
or
	 
	 	(n)	 	such Receivable represents unearned revenue, progress, pre-billing or
instalment sales or the Borrower, in order to be entitled to collect such Receivable,
is required to perform any additional service for, or perform or incur any additional
obligation to, the person to whom or to which it was made; or
	 
	 	(o)	 	the total Receivables of such Account Debtor (aggregated with any Receivables
of any Affiliates of such Account Debtor) represent more than 20% of all Eligible
Receivables of the Borrower but only to the extent of the value of Receivables in
excess of such 20% threshold; or
	 
	 	(p)	 	such Receivable represents a rebate or commission or tax accrual or refund; or
	 
	 	(q)	 	the Account Debtor is an individual; or
	 
	 	(r)	 	with respect to which Receivable payment of money has been received, presented
for delivery and returned uncollected for any reason; or
	 
	 	(t)	 	the Facility Agent, in good faith acting in accordance with its customary
business practices, determines, in its sole discretion, that such Receivable will
likely not be paid or the prospect of collection is materially impaired or is otherwise
ineligible.






“Employee Plan” means an employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which a US Group Company or any ERISA Affiliate is (or, if such
plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.




“Encumbrance” means any mortgage, charge (fixed or floating or otherwise), pledge, lien,
hypothecation, right of set-off, security trust, assignment by way of security, reservation
of title, or any other security interest whatsoever, howsoever created or arising or any
other agreement or arrangement (including any sale and leaseback transaction) entered into
for the purposes of conferring security and any agreement to enter into, create or establish
any of the foregoing.




“Environment” means living organisms including the ecological systems of which they form
part and all, or any of, the following media: the air (including the air within buildings
and the air within other natural or man-made structures above or below ground), water
(including ground and surface water) and land (including surface and sub-surface land).



10









 






“Environmental Claim” means any claim by any person:




	 	(a)	 	in respect of any loss or liability suffered or incurred by that person as a
result of or in connection with any violation of Environmental Law; or
	 
	 	(b)	 	that arises as a result of or in connection with Environmental Contamination
and that could give rise to any remedy or penalty (whether interim or final) that may
be enforced or assessed by private or public legal action or administrative order or
proceedings, including any such claim arising from injury to persons, property or
natural resources.






“Environmental Contamination” means each of the following and their consequences:




	 	(a)	 	any release, emission, leakage, spillage or existence of any Dangerous
Substance at or from any site owned, occupied or used by any Obligor into any part of
the Environment; or
	 
	 	(b)	 	any accident, fire, explosion or sudden event at any site owned, occupied or
used by any Obligor which is directly or indirectly caused by or attributable to any
Dangerous Substance; or
	 
	 	(c)	 	any other pollution of the Environment.






“Environmental Law” means all applicable laws (including common law), regulations, directing
codes of practice, circulars, guidance notices and the like having legal effect (where any
Obligor owns or occupies any premises or may for any other reason be subject to such laws in
such jurisdiction) concerning pollution or the protection of human health, the Environment,
the conditions of the work place or the generation, transportation, storage, treatment or
disposal of Dangerous Substances.




“Environmental Licence” means any permit, licence, authorisation, consent or other approval
required by any Environmental Law.




“Equity Issuance” means any issuance or allotment of share capital, including the issuance
or allotment of capital stock, partnership, profits, capital or member interests or options,
warrants or any other right to subscribe for or otherwise acquire the capital stock or a
partnership, profits, capital or member interest.




“ERISA” means, at any date, the US Employee Retirement Income Security Act of 1974 (or any
successor legislation thereto) as amended from time to time, and the regulations promulgated
thereunder, all as the same may be in effect at such date.




“ERISA Affiliate” means any person that for purposes of Title I and Title IV of ERISA and
Section 412 of the Code would be deemed at any relevant time to be a single employer with a
US Group Company, pursuant to Section 414 (b), (c), (m) or (o) of the Code or Section 4001
of ERISA.




“ERISA Event” means (a) a reportable event described in Section 4043(b) or 4043(c) of ERISA
with respect to any Employee Plan for which the notice requirements have not been waived;
(b) the withdrawal of any US Group Company or any ERISA Affiliate from an Employee Plan
subject to Section 4063 of ERISA during a plan year in which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (c) the complete or partial withdrawal of a US
Group Company or any ERISA Affiliate from any Multiemployer Plan; (d) notice of
reorganisation or insolvency of a Multiemployer Plan; (e) the filing of a notice of intent
to terminate an Employee Plan or the treatment of a plan amendment as a termination



11









 







under Section 4041 of ERISA; (f) the institution of proceedings to terminate an Employee
Plan or a Multiemployer Plan by the Pension Benefit Guaranty Corporation (“PBGC”); (g) the
failure to make any required contribution to an Employee Plan or a Multiemployer Plan; (h)
the imposition of a lien under Section 412 of the Code or Section 302 of ERISA on a US Group
Company or any ERISA Affiliate; (i) the loss of an Employee Plan’s qualification or tax
exempt status; (j) any other event or condition which could reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Employee Plan or Multiemployer Plan or the imposition of any
liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA.




“EUR”,
“Euro” and “€” mean the single currency introduced in the third stage of economic
and monetary union pursuant to the EC Treaty.




“Event of Default” means any of the events or circumstances specified in Clause 22.1 (Events
of Default).




“Existing Collection Account” means an account existing as at the Signing Date (other than a
Collection Account) established and maintained with a Third Party Account Bank that is used
for the collection of Receivables.




“Facility Office” means in relation to a Lender:




	 	(a)	 	the office or offices of that Lender whose address appears under its name in
Schedule 1 (The Lenders) or is specified for this purpose in the schedule to the
Transfer Certificate or other document by which such Lender became party to or acquired
rights under this Agreement; and/or
	 
	 	(b)	 	any (and each) other office notified by that Lender to the Facility 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 that
Lender will perform its obligations under this Agreement.






“Fee Letter” means the letter from the Facility Agent and the Arranger to the Borrower dated
the date of this Agreement setting out details, inter alia, of fees payable in connection
with the Facility, as referred to in Clause 11 (Commissions and Fees).




“Finance Documents” means:




	 	(a)	 	this Agreement;
	 
	 	(b)	 	the Security Trust and Agency Deed;
	 
	 	(c)	 	each Security Document;
	 
	 	(d)	 	the Hedging Agreements (if any);
	 
	 	(e)	 	each Accession Agreement;
	 
	 	(f)	 	each Transfer Certificate;
	 
	 	(g)	 	the Fee Letter; and
	 
	 	(h)	 	any other document designated as a Finance Document by the Facility Agent and
the Borrower in writing.




12









 












“Finance Parties” means the Arranger, the Facility Agent, the Security Agent, each Lender,
and each Hedging Bank (if any); and



“Finance Party” means any of them.



“Financial Quarter” means each period of three months ending on a Quarter Day.




“Financial Statements” means from time to time the audited or unaudited consolidated or
unconsolidated financial statements or reports of the US Parent, the Group and the Borrower
delivered from time to time (including the annual and quarterly consolidated financial
statements and the Borrower Reporting Package in accordance with Clause 18.1 (Financial
Statements)), in each case including any notes contained in and/or accompanying the
foregoing, delivered or required to be delivered to the Facility Agent pursuant to this
Agreement, or such of the foregoing as the context requires.




“Financial Year” means each annual period ending on 31 December in respect of which audited
consolidated Financial Statements of the Group are prepared.




“Fixed Charge Coverage Ratio” means, as at any date of determination, the ratio of:




	 	(a)	 	(i) Consolidated EBITDA for the period ending on such date of determination
minus (ii) the aggregate amount of all Non-Financed Capital Expenditures made during
such period minus (iii) the aggregate amount paid, or required to be paid (without
duplication), in cash in respect of the current portion of all income taxes for such
period minus (iv) the aggregate amount of dividends and distributions paid in cash
during such period,






to




	 	(b)	 	the sum of: (i) the aggregate amount of Consolidated Interest Expense for such
period and (ii) the aggregate amount of regularly scheduled payments of principal in
respect of Indebtedness for borrowed money (including the principal component of any
payments in respect of Capitalized Leases) paid or required to be paid during such
period;






provided, that for the avoidance of doubt, the repayment of the Convertible Notes out of the
proceeds of the first Utilisation hereunder shall be excluded from calculations of Fixed
Charge Coverage Ratio for covenant compliance purposes.




“Foreign Plan” means any plan, scheme, fund or other similar program (but excluding social
insurance required to be implemented by applicable law) established, maintained or
contributed to outside the US by any member of the Group, whether currently or in the past,
primarily for the benefit of employees or former employees of the Group residing or working
outside the US, which plan, scheme, fund or other similar program provides, or results in, a
pension, superannuation or other retirement (including early retirement) income, benefits in
the event of ill-health, injury or death, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, (in each case including in
the form of a lump sum) (together, “Foreign Benefits”) and which plan is not subject to
ERISA or the Code.




“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any supranational body or agency and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government
in any jurisdiction.




“Group” means the US Parent and its Subsidiaries from time to time; and “Group Company” and
“member of the Group” shall mean any one of them.



13









 







“Group Structure Chart” means the group structure chart delivered by the US Parent to the
Facility Agent in satisfaction of condition precedent 7 of Schedule 2 (Conditions
Precedent).




“Hedging Agreement” means any agreement entered into by the Borrower with a Hedging Bank for
the purpose of hedging interest rate or foreign exchange risk in relation to the Facility.




“Hedging Bank” means any Lender (or an Affiliate of a Lender) in its capacity as a provider
of interest rate or foreign exchange hedging in relation to the Facility pursuant to a
Hedging Agreement entered into from time to time and any Lender (or an Affiliate of a
Lender) which has acceded to this Agreement in its capacity as a Hedging Bank pursuant to
the execution of an Accession Agreement.




“Holding Company” means any person of which another person is a Subsidiary.




“Indebtedness” means, as to any Person and whether recourse is secured by or is otherwise
available against all or only a portion of the assets of such Person and whether or not
contingent, but without duplication:




	 	(a)	 	every obligation of such Person for money borrowed;
	 
	 	(b)	 	every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses;
	 
	 	(c)	 	every reimbursement obligation of such Person with respect to letters of
credit, bankers’ acceptances, or similar facilities issued for the account of such
Person;
	 
	 	(d)	 	every obligation of such Person issued or assumed as the deferred purchase
price of property or services (including securities repurchase agreements but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business which are not overdue or which are being contested in good faith);
	 
	 	(e)	 	every obligation of such Person under any Capitalized Lease;
	 
	 	(f)	 	every obligation of such Person under any synthetic lease;
	 
	 	(g)	 	all sales by such Person of (i) accounts or general intangibles for money due
or to become due, (ii) chattel paper, instruments or documents creating or evidencing a
right to payment of money or (iii) other receivables, whether pursuant to a purchase
facility or otherwise, other than in connection with the disposition of the business
operations of such Person relating thereto or a disposition of defaulted receivables
for collection and not as a financing arrangement, and together with any obligation of
such Person to pay any discount, interest, fees, indemnities, penalties, recourse,
expenses or other amounts in connection therewith;
	 
	 	(h)	 	every obligation of such Person (an “equity related purchase obligation”) to
purchase, redeem, retire or otherwise acquire for value any shares or other equivalent
equity interest issued by such Person or any rights measured by the value of such shares or other equivalent equity interest;
	 
	 	(i)	 	every obligation of such Person under any Derivative Agreement;
	 
	 	(j)	 	every obligation in respect of Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent that such Person
is




14









 






	 	 	 	liable therefor as a result of such Person’s ownership interest in or other
relationship with such entity, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefor and such terms are
enforceable under applicable law; and
	 
	 	(k)	 	every obligation, contingent or otherwise, of such Person guaranteeing, or
having the economic effect of guarantying or otherwise acting as surety for, any
obligation of a type described in any of clauses (a) through (j) (the “primary
obligation”) of another Person (the “primary obligor”), in any manner, whether directly
or indirectly, and including, without limitation, any obligation of such Person (i) to
purchase or pay (or advance or supply funds for the purchase of) any security for the
payment of such primary obligation, (ii) to purchase property, securities or services
for the purpose of assuring the payment of such primary obligation, or (iii) to
maintain working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
primary obligation.






“Information” means any written information, representations, warranties or statements
prepared for and provided by or on behalf of any member of the Group to the Facility Agent
or the Arranger in connection with it or any member of the Group.




“Initial Funding Date” means the date of the initial Utilisation under this Agreement.




“Intellectual Property Rights” means all patents, trade marks, service marks, trade names,
design rights, copyright (including rights in computer software and moral rights and in
published and unpublished work), titles, domain names, rights to know-how and other
intellectual property rights, in each case whether registered or unregistered and including
applications for the grant of any of the foregoing (and all goodwill associated with any of
the foregoing) and all rights or forms of protection having equivalent or similar effect to
any of the foregoing which may subsist anywhere in the world.




“Interest Payment Date” means, in relation to any Loan or any Overdue Amount, the last day
of an Interest Period relating thereto.




“Interest Period” means, in relation to a Loan, the period determined in accordance with
Clause 9 (Interest Periods) and, in relation to any Overdue Amount, each period determined
in accordance with Clause 10.3 (Default Interest).




“IRS” means the Internal Revenue Service and any Governmental Authority succeeding to any of
its principal functions under the Code.




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




“Lender” means each Original Lender to the extent of its participation in the Revolving
Facility, and any Transferee to whom rights and/or obligations are or have been assigned or
transferred in accordance with Clause 26.2 (Assignments and Transfers by Lenders) (until, in
each case, its entire participation in the Revolving Facility has been assigned or
transferred in accordance with Clause 26.2 (Assignments and Transfers by Lenders)) and such
persons shall be collectively referred to as the “Lenders”.




“LIBOR” means, in relation to any LIBOR Loan:




	 	(a)	 	the applicable Screen Rate; or




15









 












	 	(b)	 	(if no Screen Rate is available for the currency or Interest Period of that
LIBOR Loan) the arithmetic mean of the rates (rounded upwards to four decimal places)
as supplied to the Facility Agent at its request quoted by the Reference Lenders 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 LIBOR Loan and for a period comparable to the Interest Period of the relevant LIBOR
Loan.




“LIBOR Loan” means a loan made or to be made under the Revolving Facility bearing interest
at a rate initially determined by reference to LIBOR or the principal amount outstanding for
the time being of that loan.




“Loan” means a LIBOR Loan or a Reference Rate Loan.




“Majority Lenders” means, at any time:




	 	(a)	 	at least two Lenders whose Commitments in aggregate represent more than 50% of
the Total Commitments; and
	 
	 	(b)	 	if the Total Commitments have been reduced to zero, at least two Lenders whose
Commitments in aggregate represented more than 50% of the Total Commitments immediately
before the reduction.






“Mandatory Cost” means the percentage rate per annum calculated by the Facility Agent in
accordance with Schedule 4 (Mandatory Cost Formulae).




“Margin” means 2.00% per annum.




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




	 	(a)	 	the business, assets, liabilities or condition (financial or otherwise) or
results of operations of the Borrower or the Obligors taken as a whole; or
	 
	 	(b)	 	the ability of the Borrower or the Obligors to comply with its obligations
under Clause 21 (Financial Covenants); or
	 
	 	(c)	 	the ability of any Obligor to perform fully its payment obligations under the
Finance Documents; or
	 
	 	(d)	 	the validity or enforceability of, or the effectiveness or ranking of any
security granted or purported to be granted pursuant to any of the Finance Documents or
the rights or remedies of the Finance Parties under any Finance Document, in each case
in a manner or to an extent which is prejudicial to the interests of the Finance
Parties under the Finance Documents in any material respect.






“Maturity Date” means the date falling five years after the date of this Agreement.




“Maximum Credit” means, at any time, the amount of US$165,000,000 or such lesser amount as
may be agreed between the Facility Agent and the Borrower.




“Minimum Available Cash” has the meaning given to it in Clause 19.14 (Minimum Available
Cash).



16









 







“Multiemployer Plan” means a “multiemployer plan” (as defined in Section (3)(37) of ERISA)
contributed to for any employees of a US Group Company that is an Obligor or any ERISA
Affiliate.




“Non-Financed Capital Expenditures” means capital expenditures paid in cash and not financed
with Indebtedness for borrowed money constituted by term loans, notes, bonds, capital leases
or other instruments, in each case, incorporating at least medium or long term repayment
provisions.




“Obligations” means the Utilisations and all other amounts, interest (including default
interest) and whether accrued or incurred before or after the commencement of any insolvency
or other related proceedings, fees, costs, expenses, taxes, payments and other obligations,
parallel debts, covenants and duties owing by the Obligors (or any one or more of them) to a
Finance Party, of every type and description (whether by reason of an extension of credit,
loan, guarantee, indemnification, foreign exchange or currency swap transaction, interest
rate hedging transaction or otherwise), present or future, arising under this Agreement
including, without limitation, under the guarantees and indemnities pursuant to Clause 15.1
(Guarantee and Indemnity), and/or any other Finance Document, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising (including payment obligations arising in respect of the
enforcement of remedies) and however acquired and whether or not evidenced by any note,
guarantee or other instrument or for the payment of money.




“Obligor” means the Borrower and each Guarantor; and “Obligors” shall mean all of them
collectively.




“Overdue Amount” means any sum that has become due and payable by an Obligor under any
Finance Document and which has not been paid.




“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.




“Payables Account” means an account (other than a Collection Account or an Existing
Collection Account) established and maintained by the Borrower with the Facility Agent or
its Affiliate or any other person for general business purposes.




“Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title
IV of ERISA which a member of the Group or any ERISA Affiliate sponsors, maintains, or to
which it makes, is making, or is obligated to make contributions, or in the case of a
Multiemployer Plan has made contributions at any time during the immediately preceding five
plan years.




“Permitted Disposals” means with respect to the Borrower and Swiss Parent only:




	 	(a)	 	Disposals made in the ordinary course of trading of the disposing entity;
	 
	 	(b)	 	Disposals of assets (other than Eligible Receivables) in exchange for other
assets of comparable or superior as to type; and
	 
	 	(c)	 	Disposals for cash on arm’s length terms of any surplus or obsolete or worn-out
assets which in the reasonable opinion of the Borrower or Swiss Parent, as applicable,
making the Disposal are not used or useful for the efficient operation of its business.




17









 












“Permitted Encumbrances” means:




	 	(a)	 	any Encumbrance arising under, or constituted by, the Security Documents or any
other Finance Document;
	 
	 	(b)	 	any Encumbrance arising in the ordinary course of business by operation of law
and not as a result of any default or omission on the part of the Borrower;
	 
	 	(c)	 	any rights of set-off or netting arising in the ordinary course of business,
including by virtue of trading activities between any Obligor and its suppliers or
customers and in ordinary banking arrangements permitted by this Agreement;
	 
	 	(d)	 	statutory Encumbrances for Taxes not yet due or contested in good faith by
appropriate proceedings, provided that adequate reserves with respect to such contested
taxes are maintained on the books of the appropriate Obligor in accordance with
Approved Accounting Principles; and
	 
	 	(e)	 	any other Encumbrances to which the Facility Agent (on the instructions of the
Majority Lenders) shall have given prior written consent.






“Permitted Guarantees” means:




	 	(a)	 	any guarantees arising under, or constituted by, the Finance Documents; and
	 
	 	(b)	 	any guarantees granted, other than in respect of Indebtedness, in the ordinary
course of business.






“Permitted Indebtedness” means:




	 	(a)	 	any Indebtedness arising under the Finance Documents;
	 
	 	(b)	 	any Indebtedness arising under Capitalized Leases in respect of equipment and
other items required for the business of the Borrower where the aggregate capital
element of all future rentals does not exceed US$10,000,000 or its Dollar Equivalent;
and
	 
	 	(c)	 	any other Indebtedness to which the Facility Agent (acting on the instructions
of the Majority Lenders) shall have given prior written consent.






“Permitted Loans” means:




	 	(a)	 	any loan permitted pursuant to paragraph (a) of the definition of Permitted
Indebtedness;
	 
	 	(b)	 	trade credit given in the ordinary course of the Borrower’s trading activities;
	 
	 	(c)	 	any loan (documented in writing) by the Borrower to any other Obligor of the
proceeds of Utilisation under this Agreement, as contemplated by Clause 2.2(a)(i)
(Purpose); and
	 
	 	(d)	 	any loan arising in respect of equipment and other items required for the
business of the Borrower in the ordinary course of business.






“Permitted Transaction” means:




	 	(a)	 	any sale, issuance, transfer or other disposal of the shares, stock or other
equity interests in the Swiss Parent or the Borrower to another member of the Group;




18









 












	 	(b)	 	a reorganisation on a solvent basis of the Swiss Parent;
	 
	 	(c)	 	the combination of the Swiss Parent with any other member of the Group (other
than the Borrower) by one or more of the following methods: (i) amalgamation; (ii)
winding-up; or (iii) asset transfer and dissolution, in each case, on (x) a solvent
basis and (y) with the Swiss Parent remaining as the surviving entity or a wholly-owned
Subsidiary of the US Parent remaining as the surviving entity,






in each case, where:




	 	(A)	 	no Default is then outstanding or would arise as a result of such transaction;
	 
	 	(B)	 	no Change of Control would arise as a result of the proposed transaction;
	 
	 	(C)	 	the Finance Parties will enjoy (in the opinion of the Facility Agent (acting
reasonably) and supported by any professional opinions and reports requested by it) at
least the same type and level (including as to value, priority, enforceability and
perfection) of guarantee and Security as shall have been the case immediately prior to
such action; and
	 
	 	(D)	 	the US Parent shall have given the Lenders at least 60 days notice of the
proposed transaction and shall deliver such information as may reasonably be requested
by any of the Finance Parties as may be required in order for such persons to confirm
compliance with the above requirements.






“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which such US
Group Company or any ERISA Affiliate sponsors or maintains or to which such US Group Company
or any ERISA Affiliate makes, is making, or is obligated to make contributions and includes
any Pension Plan.




“Projections” has the meaning given to it in Clause 18.1(d) (Financial Statements).




“Quarter Day” means 30 September, 31 December, 31 March and 30 June.




“Quotation Day” means, in relation to any period for which an interest rate is to be
determined, two Business Days before the first day of that period.




“Ratable Portion” or “ratably” means, with respect to any Lender, the percentage obtained by
dividing (i) the Commitment of such Lender by (ii) the aggregate Commitments of all Lenders
(or, at any time after the Maturity Date, the percentage obtained by dividing the Total
Outstandings owing to such Lender by the Total Outstandings owing to all Lenders).




“Receivable” means a right to payment of a monetary obligation, whether or not earned by
performance, for property that has been or is to be sold, leased, licensed, assigned or
otherwise disposed of, or for services rendered or to be rendered, including any rights to
payment evidenced by chattel paper or an instrument, insurance claims, commercial tort
claims, deposit accounts, investment property, or letter of credit rights or letters of
credit, together, in each case, with all connected or ancillary rights, claims,
entitlements, benefits, deposits and payments howsoever arising.




“Reference Lenders” means the principal office in London of Bank of America, N.A., Lloyds
TSB Bank plc and National Westminster Bank plc, or if any such bank ceases to be a Reference
Lender, such other bank as the Facility Agent may select in consultation with the Borrower.



19









 






“Reference Rate” means in relation to any Reference Rate Loan, the Facility Agent’s
reference rate for the applicable currency being the rate from time to time set by the
Facility Agent based on various factors including the Facility Agents’ cost of funds,
desired return and general economic conditions and which is used by it as a reference point
for pricing loans made by it in such currency.




“Reference Rate Loan” means a short term loan made available by the Lenders under the
Revolving Facility bearing interest at a rate initially determined by reference to the
Reference Rate or the principal amount outstanding for the time being of that loan.




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




	 	(a)	 	its jurisdiction of incorporation or organisation;
	 
	 	(b)	 	any jurisdiction where any asset (other than immaterial assets) 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; or
	 
	 	(d)	 	the jurisdiction whose laws govern the perfection of any of the Security
Documents entered into by it.






“Relevant Period” means, in relation to the financial covenant in Clause 21.1 (Fixed Charge
Coverage Ratio), each period of three months ending on the last day of the most recent
Financial Quarter of the US Parent’s Financial Year.




“Reserves” means such amounts as the Facility Agent in its sole discretion acting in good
faith in accordance with its customary business practices, may from time to time establish
against the aggregate gross amount of Eligible Receivables to reflect risks or contingencies
whether existing prior to the Signing Date or otherwise which may affect one or more class
of such items and which have not already been taken into account in the calculation of the
Borrowing Base Availability or Eligible Receivables in any jurisdiction for purposes of the
Facility. Without limiting the foregoing, the Facility Agent shall be entitled to establish
Reserves in respect of the Borrower and its Eligible Receivables to reflect risks and
contingencies arising in respect of (a) creditors which may have a priority claim to the
Collateral including the fees, costs and expenses of receivers, administrators and other
insolvency officers, unpaid payroll, pension, tax, insurance or other obligations, (b) title
retention issues, set-off claims, or unapplied credit balances and (c) actual or anticipated
movements in currency exchange rates. Any Reserves so established shall continue as set
until further revised or eliminated.




“Revolving Facility” or “Facility” means the revolving credit facility made available by the
Lenders pursuant to Clause 2.1 (Grant of the Facility).




“Rollover Loan” means one or more LIBOR Loan(s):




	 	(a)	 	made or to be made on the same day that one or more maturing LIBOR Loan(s) is
or are due to be repaid;
	 
	 	(b)	 	the aggregate amount of which is equal to or less than the maturing LIBOR
Loan(s); and
	 
	 	(c)	 	made or to be made to the Borrower for the purpose of refinancing the maturing
LIBOR Loan(s).




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“Screen Rate” means in relation to LIBOR, the British Bankers’ Association Interest
Settlement Rate for the relevant currency and period displayed on the appropriate page of
the Telerate screen. If the agreed page is replaced or service ceases to be available, the
Facility Agent may specify another page or service displaying the appropriate rate after
consultation with the Borrower and the Lenders.




“Security” means the Encumbrances created or expressed to be created pursuant to the
Security Documents.




“Security Documents” means each of the following documents:




	 	(a)	 	the charges, pledges and assignments and other security documents in form and
substance acceptable to the Security Agent and the Facility Agent and delivered to the
Facility Agent under Schedule 2 (Conditions Precedent); and
	 
	 	(b)	 	any other documents entered into from time to time by any member of the Group
providing for a guarantee or Encumbrance in favour of the Security Agent in respect of
the Obligations of the Obligors under the Finance Documents, and any other documents
designated as Security Documents by the Facility Agent, the Security Agent and the
Borrower in writing.






“Security Trust and Agency Deed” means the security trust and agency deed dated on or about
the date hereof between the Security Agent, the Facility Agent, the Lenders and the
Obligors.




“Signing Date” means the date of this Agreement.




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




“Subsidiary” means any of:




	 	(a)	 	a person of which another person has direct or indirect control or owns
directly or indirectly more than 50% of the voting capital or similar right of
ownership or control and “control” means for this purpose the power to direct the
management and the policies of the person whether through the ownership of voting
capital, by contract or otherwise; and
	 
	 	(b)	 	a person treated as a subsidiary in the financial statements of any person in
the financial statements of such person.






“Taxes” means all income and other taxes and levies, imposts, duties, charges, fees,
deductions and withholdings in the nature or on account of tax together with interest and
penalties in respect thereof, and any payments made in respect thereof; and “Tax” and
“Taxation” shall be construed accordingly.




“Term” means, in respect of the Facility, the period beginning on the date of this Agreement
and ending on the date on which all amounts due hereunder (whether representing principal,
interest, fees, costs, expenses or commissions) have been paid and discharged in full and,
for the avoidance of doubt, all Commitments have been terminated.




“Third Party Account Bank” means a bank or other financial institution other than the
Facility Agent or any Affiliate of the Facility Agent.




“Total Availability” means, at any time, lesser of (a) the Maximum Credit, (b) the maximum
amount of the Total Commitments and (c) the Borrowing Base Availability at such time.



21









 







“Total Commitments” means, at any time, the aggregate of all the Commitments at that time.




“Total Outstandings” means, at any particular time the aggregate principal amount of the
Utilisations outstanding at such time.




“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 Facility Agent and the
Borrower.




“Transfer Date” means, in relation to any Transfer Certificate, the later of:




	 	(a)	 	the proposed date specified as being the transfer date in such Transfer
Certificate; or
	 
	 	(b)	 	the date on which the Facility Agent executes the Transfer Certificate.






“Transferee” means any bank, financial institution, trust, fund or other entity which is
engaged in or established for the purpose of making, purchasing or investing in loans,
securities or other financial assets to whom a Lender transfers or assigns (or, as the
context may require, seeks to transfer or assign) all or part of its rights, benefits and
obligations hereunder.




“Transferor” means a Lender which transfers or assigns (or, as the context may require,
seeks to transfer or assign) all or part of its rights, benefits and obligations hereunder
pursuant to a Transfer Certificate.




“US”, “United States” or “USA” means the United States of America.




“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272
(2001).




“US Bankruptcy Law” means the Bankruptcy Code or any other US Federal or State bankruptcy,
insolvency or similar law for the reorganisation or relief of debtors.




“USD”, “Dollars”, or “US$” means the lawful currency for the time being of the USA.




“US Group Company” means any member of the Group which is incorporated or organised under
the laws of the USA or any state of the USA (including the District of Columbia).




“Utilisation” means the advancing of a Loan.




“Utilisation Date” means the date on which a Utilisation is, or is to be, made.




“Utilisation Request” means a notice substantially in the form set out in Part I (Form of
Utilisation Request — LIBOR Loans) or Part II (Form of Utilisation Request – Reference Rate
Loans) 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 in any jurisdiction.




	1.2	 	Construction
	 
	 	 	In this Agreement, save where the context otherwise requires:




22









 












	 	(a)	 	references to “assets” shall include revenues and the right thereto and
property and rights of every kind, present, future and contingent and whether tangible
or intangible (including uncalled share capital);
	 
	 	(b)	 	the expressions “hereof”, “herein”, “hereto”, “hereunder” and similar
expressions shall be construed as references to this Agreement as a whole (including
all Schedules) and shall not be limited to the particular clause or provision in which
the relevant expression appears, and references to this Agreement and all like
indications shall include references to this Agreement as supplemented by any Accession
Agreement, the Transfer Certificates and any other agreement or instrument
supplementing or amending this Agreement;
	 
	 	(c)	 	the word “including” when used in any Finance Document means “including without
limitation” except when used in the computation of time periods;
	 
	 	(d)	 	references to a “person” or a “Person” shall be construed as a reference to any
person, entity, firm, company, corporation, government, state or agency of a state or
any association, trust or partnership (whether or not having separate legal
personality) or two or more of the foregoing or equivalent in any jurisdiction;
	 
	 	(e)	 	“guarantee” means (other than in Clause 15 (Guarantee and Indemnity)) any
guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any
obligation, direct or indirect, actual or contingent, to purchase or assume any
Indebtedness of any person or to make an investment in or loan to any person or to
purchase assets of any person where, in each case, such obligation (including any
indemnity) is assumed in order to maintain or assist the ability of such person to meet
its Indebtedness;
	 
	 	(f)	 	references to any of the Finance Documents and any other agreement or
instrument shall be construed as a reference to the same as amended, amended and
restated, varied, restated, supplemented or novated from time to time (including, where
relevant, by any accession agreement and/or Transfer Certificate) however fundamentally
(including, without limitation, by way of the change of parties thereto, an increase in
the amount of principal, interest or other amount owing thereunder, or a change in the
terms of payment thereunder);
	 
	 	(g)	 	unless otherwise specified, references to Clauses and Schedules are references
to, respectively, clauses of and schedules to this Agreement;
	 
	 	(h)	 	words importing the singular shall include the plural and vice versa;
	 
	 	(i)	 	references (by whatever term, including by name) to the Borrower, each Obligor,
the Arranger, each Lender, each Hedging Bank, each Reference Lender, the Facility
Agent, the Security Agent or the other parties to this Agreement shall, where relevant
and subject as otherwise provided in this Agreement, be deemed to be references to or
to include, as appropriate, their respective successors, replacements and assigns,
transferees and substitutes permitted by the terms of the relevant Finance Documents;
	 
	 	(j)	 	reference to a time of day is, unless otherwise stated, a reference to London
time and references to a month are references to a period starting on any particular
day in a calendar month and ending on the numerically corresponding day in the next
calendar month; provided that if a period starts on the last day in a calendar month or
if there is no numerically corresponding day in the month in which the relevant period
ends, that period shall, save as otherwise provided in this Agreement, end on the last
day in such later month (and references to months shall be construed accordingly);




23









 












	 	(k)	 	a person shall be deemed to “control” another person if such person possesses,
directly or indirectly, the power to direct or cause the direction of the management
and policies of such other person, whether through the ownership of voting securities,
by proxy, agency, contract or otherwise.
	 
	 	(l)	 	references to a document being in the agreed form means (subject to any
amendments thereto of a minor non-substantive or typographical nature) in the form
agreed by the Facility Agent and set out in a schedule to any Finance Document or
otherwise initialled for the purposes of identification by, or on behalf of, the
Borrower and the Facility Agent;
	 
	 	(m)	 	the headings in this Agreement are for convenience only and shall be ignored in
construing this Agreement;
	 
	 	(n)	 	all references to statutes and other legislation include all re-enactments and
amendments of those statutes and that legislation;
	 
	 	(o)	 	a Default (other than an Event of Default) is “continuing” if it has not been
remedied or waived and an Event of Default is “continuing” if it has not been (i)
waived, (ii) in the case of Clause 22.1(f) (Cross Default), remedied (to the extent
capable of being so remedied) or (iii) in the case of Clause 22.1(g) (Cross
Acceleration), remedied pursuant to a rescission by creditors of action previously
taken giving rise to such Event of Default (to the extent capable of being so
remedied);
	 
	 	(p)	 	the “winding up”, “dissolution”, “administration”, “receivership” or
“bankruptcy” of a person and references to the “liquidator”, “administrator”,
“receiver”, “administrative receiver”, “receiver and manager”, “manager” or “trustee”
of a person shall be construed so as to include any equivalent or analogous proceedings
or, as the case may be, insolvency representative or officer under the law of the
jurisdiction in which such person or, as the case may be, insolvency representative or
officer is incorporated or constituted or of any jurisdiction in which such person or,
as the case may be, insolvency representative or officer, carries on business; and
	 
	 	(q)	 	the “amount” or “principal amount” of any Indebtedness at any time of
determination represented by (a) any Indebtedness, issued at a price that is less than
the principal amount at maturity thereof, shall be the amount of the liability in
respect thereof determined in accordance with Approved Accounting Principles, (b) any
Capitalized Lease shall be the present value of the aggregate of the rentals obligation
under such Capitalized Lease payable over the term thereof that is not subject to
termination by the lessee, (c) any sale of receivables shall be the amount of
unrecovered capital or principal investment of the purchaser (other than the Borrower
or any of its wholly-owned Subsidiaries) thereof, excluding amounts representative of
yield or interest earned on such investment, (d) any synthetic lease shall be the
stipulated loss value, termination value or other equivalent amounts, (e) any
derivative contract shall be the maximum amount of any termination or loss payment
required to be paid by such Person if such derivative contract were, at the time of
determination, to be terminated by reason of any event of default or early termination
event thereunder, whether or not such event of default or early termination event has
in fact occurred, (f) any equity related purchase obligation shall be the maximum fixed
redemption or purchase price thereof inclusive of any accrued and unpaid dividends to
be comprised in such redemption or purchase price and (g) any guarantee or other
contingent liability referred to in clause (k) of the definition of “Indebtedness”)
shall be an amount equal to the stated or determinable amount of the primary obligation
in respect of which such guarantee or other contingent obligation




24









 






	 	 	 	is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.






	1.3	 	Accounting Terms
	 
	 	 	All accounting expressions which are not otherwise defined herein shall be construed in
accordance with Approved Accounting Principles.






	1.4	 	Third Party Rights
	 
	 	 	Unless expressly provided to the contrary in this Agreement, a person who is not a party to
this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999
to enjoy the benefit of or enforce any of its terms.
	 
	2.	 	THE REVOLVING FACILITY
	 
	2.1	 	Grant of the Revolving Facility
	 
	 	 	On the terms and subject to the conditions of this Agreement the Lenders agree to make
available to the Borrower a revolving credit facility in a maximum aggregate principal
amount equal to the Total Commitments pursuant to which from time to time during the
Availability Period the Lenders will make (i) LIBOR Loans and (ii) Reference Rate Loans to
the Borrower.
	 
	2.2	 	Purpose






	 	(a)	 	The proceeds of each Utilisation made hereunder shall be used by the Borrower:






	 	(i)	 	to fund the making of an intercompany loan or the payment of a
dividend for use by the US Parent (including for purposes of redeeming the Zero
Coupon Convertible Notes of the US Parent due 2021);
	 
	 	(ii)	 	to fund the payment of fees, costs and expenses incurred by the
Borrower or the Finance Parties and their legal and other advisers in
connection with the transaction contemplated hereby; or
	 
	 	(iii)	 	for general corporate purposes and the working capital
requirements of the Borrower.






	 	(b)	 	No Utilisation may be used by the Borrower at any time to refinance the
acquisition in whole or in part of any person or business or undertaking thereof other
than with the prior written consent of the Facility Agent.
	 
	 	(c)	 	No Finance Party shall be obliged to enquire as to the use or application of
the proceeds of any Utilisation, nor shall any of them be responsible for the
consequences of such use or application.






	2.3	 	Undertaking by the Borrower
	 
	 	 	The Borrower undertakes that the proceeds of each Utilisation made to it shall only be used
for the purposes permitted for such Utilisation by Clause 2.2 (Purpose) and that no
Utilisation shall be used in any way which would be illegal under, or would cause the
invalidity or unenforceability (whether in whole or in part) of any Finance Document under,
any applicable law.




25









 












	2.4	 	Obligations Several
	 
	 	 	The rights and obligations of each Finance Party under the Finance Documents are several and
the total amounts outstanding at any time under the Finance Documents constitute separate
and independent debts. Failure of a Finance Party to observe and perform its obligations
under any Finance Document shall neither:






	 	(a)	 	result in any other Finance Party incurring any liability whatsoever; nor
	 
	 	(b)	 	relieve any Obligor or any other Finance Party from their respective
obligations under the Finance Documents.






	2.5	 	Enforcement of Rights
	 
	 	 	Subject to any provision of the Finance Documents to the contrary, each Finance Party has
the right to protect and enforce its rights arising out of the Finance Documents and it will
not be necessary for any other Finance Party to be joined as an additional party in any
proceedings brought for the purpose of protecting or enforcing such rights.
	 
	3.	 	CONDITIONS PRECEDENT
	 
	3.1	 	Initial Conditions Precedent
	 
	 	 	No Lender shall be under any obligation to make any Utilisation available to the Borrower
under this Agreement, unless:






	 	(a)	 	the Facility Agent has received each of the documents, information and/or other
items specified in Part IA and Part IB of Schedule 2 (Conditions Precedent) in form and
substance satisfactory to the Facility Agent;
	 
	 	(b)	 	on both the date of the delivery of the initial Utilisation Request and the
Initial Funding Date and without prejudice to the requirements set forth in paragraph
(a) of this Clause 3.1:






	 	(i)	 	all of the representations and warranties set out in Clause
17.1 (Representations and Warranties) are and will be correct (as if made with
reference to the facts and circumstances then subsisting);
	 
	 	(ii)	 	no Default has occurred and is continuing or will occur as a
result of the Utilisation; and
	 
	 	(iii)	 	the Borrower shall have delivered a Borrowing Base Certificate
to the Facility Agent.






When the Facility Agent is satisfied that the conditions specified in this Clause 3.1 have
been fulfilled, the Facility Agent will notify the Borrower.




	3.2	 	Additional Conditions Precedent




In addition to the conditions precedent set out in Clause 3.1 (Initial Conditions Precedent), no
Lender shall be under any obligation to permit any Utilisation to the Borrower under this
Agreement:





	 	(a)	 	if, to the extent that after giving effect to the relevant requested
Utilisation:






	 	(i)	 	the Dollar Equivalent of the Total Outstandings to the Borrower
would exceed its Borrowing Base Availability; or




26









 












	 	(ii)	 	the Dollar Equivalent of that Lender’s Ratable Portion of the
Total Outstandings would exceed its Commitment; and






	 	(b)	 	unless, on both the date of the relevant Utilisation Request and the relevant
Utilisation Date:






	 	(i)	 	all of the representations and warranties set out in Clause
17.1 (Representations and Warranties) which are required to be repeated
pursuant to Clause 17.2 (Repetition) are and will be correct (as if made with
reference to the facts and circumstances then subsisting);
	 
	 	(ii)	 	in the case of a Rollover Loan, no Event of Default, and in the
case of any other Utilisation, no Default has occurred and is continuing or
would result from the making of such Utilisation; and
	 
	 	(iii)	 	the Borrower shall have delivered a Borrowing Base Certificate
to the Facility Agent in accordance with Clause 18.7 (Borrowing Base
Availability Determination).






	4.	 	UTILISATION – LIBOR LOANS
	 
	4.1	 	Utilisation Conditions to LIBOR Loans
	 
	 	 	Provided the requirements of Clause 3 (Conditions Precedent) have been satisfied, a LIBOR
Loan will be made by the Lenders if:






	 	(a)	 	no later than the Specified Time, the Facility Agent has received from the
Borrower a duly completed Utilisation Request (which shall be irrevocable) for that
LIBOR Loan, receipt of which shall oblige the Borrower to borrow the amount therein
requested on the date therein stated upon the terms and subject to the conditions
contained in this Agreement;
	 
	 	(b)	 	the proposed Utilisation Date for such LIBOR Loan is a Business Day falling
during the Availability Period;
	 
	 	(c)	 	the currency specified in the Utilisation Request is the Base Currency;
	 
	 	(d)	 	the amount of the proposed LIBOR Loan will be a minimum of USD 500,000 or, if
less, the Available Facility;
	 
	 	(e)	 	the Utilisation Request specifies the initial Interest Period or Periods for
the proposed LIBOR Loan; and
	 
	 	(f)	 	only one Utilisation is requested in each Utilisation Request; and
	 
	 	(g)	 	there shall be no more than five LIBOR Loans outstanding at any one time.






	4.2	 	Notice to the Lenders of a Proposed Utilisation
	 
	 	 	The Facility Agent will promptly give each Lender details of each Utilisation Request
received in respect of a LIBOR Loan.
	 
	4.3	 	Participation of Lenders
	 
	 	 	Subject to the other provisions of this Agreement:




27









 












	 	(a)	 	each Lender shall make its participation in each LIBOR Loan available by the
Utilisation Date through its Facility Office;
	 
	 	(b)	 	each Lender will participate in each Utilisation in the proportion to which its
Available Commitment bears to the Available Facility immediately prior to making the
LIBOR Loan; and
	 
	 	(c)	 	the Facility Agent shall notify each Lender of the amount of each LIBOR Loan
and the amount of its participation in that LIBOR Loan, in each case by the Specified
Time.






	5.	 	UTILISATION – REFERENCE RATE LOANS
	 
	5.1	 	Utilisation Conditions to Reference Rate Loans
	 
	 	 	Provided the requirements of Clause 3 (Conditions Precedent) have been satisfied, a
Reference Rate Loan will be made by the Lenders if:






	 	(a)	 	no later than the Specified Time, the Facility Agent has received from the
Borrower duly completed Utilisation Request (which shall be irrevocable) for such
Reference Rate Loan substantially in the form set out in Part II (Form of Utilisation
Request – Reference Rate Loans) of Schedule 3 (Requests), receipt of which shall oblige
the Borrower to borrow the amount therein requested on the date therein stated upon the
terms and subject to the conditions contained in this Agreement;
	 
	 	(b)	 	the proposed Utilisation Date for such Reference Rate Loan is a Business Day
falling during the Availability Period;
	 
	 	(c)	 	the currency specified in the Utilisation Request is the Base Currency;
	 
	 	(d)	 	the amount of the proposed Reference Rate Loan will be a minimum of USD 250,000
or, if less, the Available Facility;
	 
	 	(e)	 	the Utilisation Request specifies that the proposed Utilisation will be for a
Reference Rate Loan;
	 
	 	(f)	 	only one Utilisation is requested in each Utilisation Request; and
	 
	 	(g)	 	there shall be no more than five Reference Rate Loans outstanding at any one
time.






	5.2	 	Notice to the Lenders of the Proposed Utilisation
	 
	 	 	The Facility Agent will promptly give each Lender details of each Utilisation Request
received in respect of a Reference Rate Loan.
	 
	5.3	 	Participation of Lenders
	 
	 	 	Subject to the other provisions of this Agreement:






	 	(a)	 	each Lender shall make its participation in each Reference Rate Loan available
by the Utilisation Date through its Facility Office;
	 
	 	(b)	 	each Lender will participate in each Utilisation in the proportion to which its
Available Commitment bears to the Available Facility immediately prior to making the
Reference Rate Loan; and





28









 











	 	(c)	 	the Facility Agent shall notify each Lender of the amount of each Reference
Rate Loan and its participation in that Reference Rate Loan by the Specified Time.






	6.	 	REPAYMENT
	 
	6.1	 	Repayment of Loans






	 	(a)	 	Each LIBOR Loan shall be repaid in full by the Borrower on the last day of its
Interest Period.
	 
	 	(b)	 	All outstanding Loans shall be irrevocably repaid in full on the Maturity Date
and no further drawings or Utilisations shall be made thereafter.
	 
	 	(c)	 	Subject to the provisions of this Agreement any amount repaid or prepaid under
the Revolving Facility shall be capable of being redrawn.






	7.	 	PREPAYMENT
	 
	7.1	 	Voluntary Prepayment






	 	(a)	 	For the avoidance of doubt, notwithstanding the repayment provisions specified
in Clause 6.1 (Repayment of Loans), the Borrower may, by giving the Facility Agent not
less than five Business Days prior written notice, prepay the whole or any part, but if
in part in an amount which reduces any outstanding Loan made to it hereunder by a
minimum of US$500,000 and integral multiples of US$500,000 in excess thereof.
	 
	 	(b)	 	Once delivered to the Facility Agent, any notice of prepayment shall be
irrevocable, shall specify the date on which the prepayment is to be made and the
amount of the prepayment and shall oblige the Borrower to make that prepayment. The
Facility Agent shall promptly notify the Lenders of receipt of any such notice of
prepayment.
	 
	 	(c)	 	Any prepayment shall be made together with accrued interest on the amount
prepaid and any amounts payable under Clause 14.3 (Break Costs).






	7.2	 	Right of Repayment and Cancellation in Relation to a Single Lender






	 	(a)	 	If:






	 	(i)	 	any sum payable to any Lender by an Obligor is required to be
increased under paragraph (c) of Clause 13.1 (Gross-up); or
	 
	 	(ii)	 	any Finance Party claims indemnification from an Obligor under
Clause 13.2 (Tax Indemnity) or Clause 12.2 (Increased Costs),






the Borrower may, whilst the circumstance giving rise to the requirement or
indemnification continues, give the Facility Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of that
Lender’s participation in the Utilisations.




	 	(b)	 	On receipt of a notice referred to in paragraph (a) above, the Commitment of
that Lender shall immediately be cancelled and reduced to zero.
	 
	 	(c)	 	On the last day of each Interest Period which ends after the Borrower has given
notice under paragraph (a) above (or, if earlier, the date specified by the Borrower in
that notice), the Borrower shall repay that Lender’s participation in that Utilisation.




29









 












	7.3	 	Mandatory Prepayment
	 
	 	 	If at any time the Facility Agent determines that:






	 	(a)	 	the Total Outstandings to the Borrower exceed the Total Availability; or
	 
	 	(b)	 	the amount of any Lender’s Ratable Portion of the Total Outstandings exceeds
its Commitment,






the Borrower shall procure that, immediately following the date that the Facility Agent
notifies the Borrower of such determination, an amount equal to the amount of such excess is
applied in prepayment of the outstanding Utilisations.




	7.4	 	Miscellaneous Provisions Relating to Repayment and Prepayment






	 	(a)	 	Any notice of prepayment given under this Agreement shall be irrevocable and,
unless a contrary indication appears in this Agreement, specify the date or dates upon
which the relevant prepayment is to be made and the amount of that prepayment.
	 
	 	(b)	 	The Borrower shall not repay or prepay all or any part of the Utilisations
except at the times and in the manner expressly provided in this Agreement.
	 
	 	(c)	 	Any prepayment shall be made together with accrued interest on the amount
prepaid and, subject to any Break Costs, without premium or penalty.
	 
	 	(d)	 	Any repayment or prepayment of a Utilisation (or part thereof) shall be made in
the currency of that Utilisation.
	 
	 	(e)	 	Unless a contrary indication appears in this Agreement, any part of the
Revolving Facility which is prepaid may be reborrowed in accordance with the terms of
this Agreement.






	8.	 	CANCELLATION
	 
	8.1	 	Mandatory Cancellation
	 
	 	 	Any part of the Commitments not borrowed shall be cancelled automatically at the close of
general banking business in London on the last day of the Availability Period and the
Finance Parties shall be under no further obligation to participate in any Utilisation
hereunder.
	 
	8.2	 	Voluntary Cancellation
	 
	 	 	The Borrower may, upon giving not less than five Business Days prior written notice to the
Facility Agent, cancel the Available Facility either in full or in part. Cancellations of
the Available Facility in part shall be in minimum amounts of US$10,000,000 and
cancellations in part shall at no time reduce the Available Facility to less than
US$82,500,000 (provided that after any cancellation in part, the Borrower may cancel the
Available Facility in full). Such notice from the Borrower shall specify the date and the
amount of the proposed cancellation and any such cancellation shall reduce each Lender’s
Commitment on a pro rata basis. Any notice of cancellation or reduction given by the
Borrower pursuant to this Clause 8.2 shall be irrevocable. The Facility Agent shall promptly
notify the Lenders following receipt of any notice of cancellation.




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	8.3	 	Miscellaneous Provisions Relating to Cancellation






	 	(a)	 	No amount of the Total Commitments may be cancelled other than at the times and
in the manner expressly provided in this Agreement.
	 
	 	(b)	 	No amount of the Total Commitments cancelled pursuant to and in accordance with
the terms of this Agreement shall subsequently be reinstated.
	 
	 	(c)	 	Any notice of cancellation given under this Agreement shall be irrevocable and,
unless a contrary indication appears in this Agreement, specify the date or dates upon
which the relevant cancellation is to be made and the amount of that cancellation.
	 
	 	(d)	 	Any cancellation of the Available Facility shall be conditional upon the
payment to the Facility Agent of the Cancellation Fee (if any) in accordance with
Clause 11.5 (Cancellation Fee).






	9.	 	INTEREST PERIODS






	9.1	 	Selection of Interest Periods






	 	(a)	 	The Borrower may select an Interest Period for a LIBOR Loan in the Utilisation
Request for that LIBOR Loan.
	 
	 	(b)	 	Subject to this Clause 9, the Borrower may select an Interest Period for a
LIBOR Loan of one, two or three months.
	 
	 	(c)	 	An Interest Period for a Loan shall not extend beyond the Maturity Date.
	 
	 	(d)	 	Each LIBOR Loan has one Interest Period only.






	9.2	 	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).
	 
	10.	 	CALCULATION AND PAYMENT OF INTEREST
	 
	10.1	 	Calculation of Interest






	 	(a)	 	Each Loan shall bear interest on the unpaid principal amount thereof from the
Utilisation Date of such Loan until repaid or prepaid in full, except as otherwise
provided in Clause 10.3 (Default Interest).
	 
	 	(b)	 	The rate of interest applicable to each Loan for a particular Interest Period
(or, in the case of a Reference Rate Loan, generally) shall be the rate per annum
determined by the Facility Agent to be the sum of:






	 	(i)	 	LIBOR or (in the case of a Reference Rate Loan) the Reference
Rate;
	 
	 	(ii)	 	the Mandatory Cost, if any; and
	 
	 	(iii)	 	the Margin.






Interest will accrue from day to day and shall be calculated on the basis of the
actual number of days elapsed and a year of 360 days.



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	10.2	 	Payment of Interest
	 
	 	 	The Borrower shall pay accrued interest on each Loan:






	 	(a)	 	with respect to LIBOR Loans, on the last day of each Interest Period applicable
to each LIBOR Loan (if any) and if such Interest Period is longer than three months, on
the dates falling at three monthly intervals after the first day of such Interest
Period;
	 
	 	(b)	 	with respect to Reference Rate Loans, on the last day of each period of one
month following the Utilisation Date in respect of such Reference Rate Loan;
	 
	 	(c)	 	on the date that such Loan is repaid or prepaid in full or in part; and
	 
	 	(d)	 	if not previously paid in full, at maturity (whether by demand, acceleration or
otherwise) of such Loan.






	10.3	 	Default Interest






	 	(a)	 	At any time when (i) an Event of Default is continuing under Clause 22.1(a)
(Events of Default) or (ii) any other Event of Default has occurred and is continuing
and remains uncured, unwaived or otherwise unremedied for ten (10) Business Days,
interest shall accrue on all amounts outstanding under the Finance Documents at a rate
(the “Default Rate”) which is 2.0% per annum higher than the then applicable rate
determined in accordance with Clause 10.1 (Calculation of Interest). Any interest
accruing under this Clause 10.3 shall be immediately payable by such Obligor on demand
by the Facility Agent.
	 
	 	(b)	 	Default interest (if unpaid) arising while an Event of Default is continuing
will be compounded with the Total Outstandings at the end of each month but will remain
immediately due and payable.






	10.4	 	Determination Conclusive
	 
	 	 	The determination by the Facility Agent of any interest payable under this Clause 10 shall
be prima facie evidence of the relevant amount payable.
	 
	10.5	 	Minimum Interest
	 
	 	 	All payments under this Agreement and the other Finance Documents by each of the Borrower
and the Swiss Parent, including, but not limited to, the rate of interest as determined in
accordance with this Clause 10 (Calculation and Payment of Interest), are minimum payments
net of any Swiss withholding tax. If it is required under Swiss law to deduct Swiss
withholding tax from any amount payable or paid by the Borrower (including interest), then
(without prejudice to the obligations in Clause 13.1 (Tax Gross-up) and Clause 13.2 (Tax
indemnities)) (a) each of the Borrower and the Swiss Parent shall increase such interest
payment by paying such additional amounts as may be necessary to ensure that the net amount
received by the relevant Finance Party after deducting the amount of such Swiss withholding
tax is equal to the full amount which the relevant Finance Party would have received had the
payment by each of the Borrower and the Swiss Parent not been subject to such Swiss
withholding tax, and (b) withholding tax shall be calculated on the increased interest rate.
Without prejudice to the foregoing, the provisions set forth in Clause 13.1 (Tax Gross-up)
and Clause 13.2 (Tax indemnities) shall apply in relation to deductions of Tax.




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	11.	 	COMMISSIONS AND FEES
	 
	11.1	 	Administration Fee
	 
	 	 	The Borrower shall pay to the Facility Agent for its own account an annual administration
fee specified in the Fee Letter at the times, and in the amounts, specified in the Fee
Letter.
	 
	11.2	 	Arrangement Fee
	 
	 	 	The Borrower shall pay to the Facility Agent and Arranger for their own account the
arrangement fee specified in the Fee Letter at the times, and in the amounts, specified in
the Fee Letter.
	 
	11.3	 	Unused Commitment Fee
	 
	 	 	The Borrower shall pay to the Facility Agent (for the account of each of the Lenders) a fee
computed at the rate of 0.375% per annum calculated on the basis of the actual number of
days elapsed and a year of 360 days, on the daily, undrawn, uncancelled amount of the Total
Commitments during the Availability Period, payable monthly in arrears following the Signing
Date during the Availability Period and on the Maturity Date.
	 
	11.4	 	Closing Fee
	 
	 	 	The Borrower shall pay to each Lender for its own account a closing fee specified in a Fee
Letter at the times, and in the amounts, specified in the Fee Letter.
	 
	11.5	 	Cancellation Fee
	 
	 	 	Upon any cancellation in full or in part of the Revolving Facility pursuant to Clause 8.2
(Voluntary Cancellation) the Borrower shall pay to the Facility Agent, for the account of
each of the Lenders, a cancellation fee in an amount equal to (the “Cancellation Fee”) of:






	 	(a)	 	2% of the principal amount of the Revolving Facility so cancelled, if such
cancellation occurs prior to the first anniversary of the date hereof;
	 
	 	(b)	 	1.25% of the principal amount of the Revolving Facility so cancelled, if such
cancellation occurs on or after the first anniversary of the date hereof but before the
second anniversary of the date hereof; or
	 
	 	(c)	 	0.50% of the principal amount of the Revolving Facility so cancelled, if such
cancellation occurs on or after the second anniversary of the date hereof but before
the third anniversary of the date hereof.






For the avoidance of doubt, there shall be no Cancellation Fee due if the cancellation is
made on or after the third anniversary of the date hereof.




	12.	 	CHANGES IN CIRCUMSTANCES
	 
	12.1	 	Illegality
	 
	 	 	If, at any time, it is unlawful for a Lender to perform any of its obligations as
contemplated by this Agreement or to fund or maintain its participation in any Utilisation,
or to allow all or part of its Commitments to remain outstanding then that Lender shall,
promptly after becoming aware of the same, deliver to the Borrower through the Facility
Agent a notice to that effect and:




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	 	(a)	 	such Lender shall not thereafter be obliged to participate in any Utilisation
and the amount of its Commitments shall be immediately cancelled and reduced to zero;
and
	 
	 	(b)	 	if the Facility Agent acting on the instructions of and on behalf of such
Lender so requires, the Borrower shall on such date as the Facility Agent shall have
specified (or, if permitted by the relevant law, the last day of the then current
Interest Period, if later) repay that Lender’s participation in the Utilisations made
to the Borrower on the last day of the Interest Period for each Utilisation occurring
after the Facility Agent has notified the Borrower or, if earlier, the date specified
by that Lender in the notice delivered to the Facility Agent (being no earlier than the
last day of any applicable grace period permitted by law).






	12.2	 	Increased Costs






	 	(a)	 	If, as a result of the introduction of or any change in (or in the
interpretation, administration or application of) any law or regulation or compliance
with any law or regulation made after the date of this Agreement:






	 	(i)	 	a Finance Party or an Affiliate of a Finance Party:






	 	(A)	 	suffers a reduction in the rate of return from
the Facility or on a Finance Party’s (or its Affiliate’s) overall
capital; or
	 
	 	(B)	 	suffers a reduction in the rate of return which
it would otherwise have been able to achieve on its overall capital but
only to the extent that such reduction is directly attributable to such
Finance Party assuming or maintaining its Commitments, funding or
maintaining its portion of the Utilisations or otherwise performing its
obligations under any Finance Document;






	 	(ii)	 	there is an increase in or addition to the cost to a Finance
Party or an Affiliate of a Finance Party of assuming or maintaining its
Commitments, funding or maintaining its portion of the Utilisations or
otherwise performing its obligations under any Finance Document; or






	 	(iii)	 	there is a reduction in any amount due and payable to a
Finance Party under any Finance Document,






then the Borrower shall, within five Business Days of a demand by the Facility
Agent, pay for the account of such Finance Party an amount sufficient to indemnify
such Finance Party or its Affiliate for such reduction in the rate of return, such
increased or additional cost or such reduction in the amount payable under a Finance
Document.




	 	(b)	 	Paragraph (a) of this Clause 12.2 shall not apply to the extent that any such
reduction in the rate of return, increased or additional cost or reduction in amount
due and payable under a Finance Document:






	 	(i)	 	is compensated for by an increased payment under Clause 13.1
(Gross-up) or a payment under Clause 13.2 (Tax Indemnity);
	 
	 	(ii)	 	would have been compensated for by an increased payment under
Clause 13.1 (Gross-up) or a payment under Clause 13.2 (Tax Indemnity) had one
of the exclusions in paragraph (c) of Clause 13.1 (Gross up) or paragraph (b)
of Clause 13.2 (Tax Indemnity) not applied;





34









 











	 	(iii)	 	is compensated for by the payment of the Mandatory Cost;
	 
	 	(iv)	 	is attributable to a change in the Tax on the overall net
income of the affected Finance Party or its Affiliate; or
	 
	 	(v)	 	is attributable to the wilful breach by the affected Finance
Party or its Affiliate of any law or regulation.






	12.3	 	Increased Cost Claim






	 	(a)	 	A Finance Party intending to make a claim pursuant to Clause 12.2 (Increased
Costs) shall promptly notify the Facility Agent of the event giving rise to such claim
and, in any event, within 180 days of such Finance Party determining the existence of
such increased costs. Upon receipt of such notice, the Facility Agent shall notify the
Borrower thereof.
	 
	 	(b)	 	Each Finance Party shall, as soon as practicable after a demand by the Facility
Agent, provide a certificate confirming the amount claimed by it pursuant to Clause
12.2 (Increased Costs) setting out calculations of such amount in reasonable detail, a
copy of which certificate shall be sent to the Borrower.






	12.4	 	Market Disruption






	 	(a)	 	If, for any Interest Period in relation to any LIBOR Loan or proposed LIBOR
Loan:






	 	(i)	 	the Facility Agent is unable (acting reasonably) to determine
LIBOR; or
	 
	 	(ii)	 	in circumstances where LIBOR is calculated by reference to
Reference Lenders, the Facility Agent requests a quotation from the Reference
Lenders and none, or only one, of the Reference Lenders supplies the Facility
Agent with a quotation for calculating LIBOR; or
	 
	 	(iii)	 	one or more Lenders whose participations in such LIBOR Loan
exceed 33.3% of such LIBOR Loan notify the Facility Agent that the cost to each
such Lender of funding such LIBOR Loan would exceed LIBOR,






then interest shall accrue on each Lender’s participation in such LIBOR Loan during
such Interest Period at the rate per annum which is the aggregate of:




	 	(A)	 	the Margin;
	 
	 	(B)	 	the rate that such Lender notifies to the
Facility Agent, as soon as practicable and in any event before interest
is due to be paid in respect of such Interest Period, to be the cost to
such Lender as reasonably determined by such Lender (expressed as a
rate per annum) of funding its participation in such LIBOR Loan from
whatever source it may reasonably select; and
	 
	 	(C)	 	the Mandatory Cost, if any, for such Interest Period.






	 	(b)	 	If an event specified in paragraph (a) of this Clause 12.4 occurs and the
Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall
enter into negotiations for a period of not more than 30 days with a view to agreeing a
substitute basis for determining the rate of interest applicable to such LIBOR Loan.
Any such substitute basis agreed between the Facility Agent and the Borrower shall




35









 






	 	 	 	take effect in accordance with its terms and be binding on each of the parties to
this Agreement; provided that the Facility Agent shall not agree to any such
substitute basis without the prior consent of all of the Lenders.






	12.5	 	Mitigation






	 	(a)	 	Each Finance Party shall, in consultation with the Facility Agent and the
Borrower, explore the taking of reasonable steps to mitigate any circumstances which
arise and which would result in any amount becoming payable under, or Commitments
cancelled pursuant to, Clauses 12.1 (Illegality), 12.2 (Increased Costs), 12.4 (Market
Disruption) or 13.1 (Gross-up).
	 
	 	(b)	 	Nothing in paragraph (a) of this Clause 12.5 shall in any way limit the
obligations of any Obligor under the Finance Documents.






	12.6	 	Indemnification and Limitation






	 	(a)	 	The Borrower shall indemnify each Finance Party for all costs and expenses
reasonably incurred by such Finance Party as a result of any steps taken by it under
Clause 12.5 (Mitigation).
	 
	 	(b)	 	A Finance Party is not obliged to take any steps under Clause 12.5 (Mitigation)
if, in the opinion of such Finance Party, to do so could reasonably be expected to have
an adverse effect upon its business, operations or financial condition or cause it to
incur liabilities or obligations (including Tax liabilities) which, in either case in
its reasonable opinion, are material or would cause it to incur any material costs or
expenses for which it has not been indemnified or cannot reasonably be expected to be
indemnified to its reasonable satisfaction by the Borrower.






	13.	 	TAXES
	 
	13.1	 	Gross-up






	 	(a)	 	Each Obligor shall make all payments to be made by it under any Finance
Document without any deduction or withholding for or on account of Tax, unless such
deduction or withholding is required by law.
	 
	 	(b)	 	If any Obligor becomes aware that it is required to make such a deduction or
withholding from a payment to be made under a Finance Document (or that there is any
change in the rate or the basis of such a deduction or withholding), such Obligor shall
promptly notify the Facility Agent. If a Lender becomes aware that an Obligor is
required to make such a deduction or withholding from a payment to be made to such
Lender under a Finance Document, such Lender shall promptly notify the Facility Agent
and, upon receipt of such notice, the Facility Agent shall notify such Obligor thereof.
	 
	 	(c)	 	If such a deduction or withholding is required by law to be made by an Obligor,
the amount of the payment due from such Obligor shall be increased to the extent
necessary to ensure that, after such deduction or withholding is made, the relevant
Finance Party receives and retains (free from any liability in respect of such
deduction or withholding) a net sum equal to the amount which it would have received
and retained had no such deduction or withholding been made or required to be made.





36









 





	 	(d)	 	If an Obligor is required to make a deduction or withholding for or on account
of Tax from any payment under any Finance Document, it shall pay the full amount
required to be deducted or withheld to the relevant Taxation or other authority within
the time allowed for such payment under applicable law and, within thirty days of
making such payment, deliver to the Facility Agent, for the Finance Party entitled to
such payment, evidence reasonably satisfactory to such Finance Party that the full
amount of such deduction or withholding has been paid to the relevant Taxation or other
authority.
	 
	 	(e)	 	If an Obligor is required to make payment under this Clause 13.1, the Finance
Party receiving such payment shall, if requested in writing, co-operate with the
Obligor, and undertake any procedural formalities necessary for such Obligor to obtain
authorisation to make such payment without any deduction or withholding for or on
account of Tax.






	13.2	 	Tax Indemnity






	 	(a)	 	If any Finance Party 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 Tax purposes to be received or receivable) under any Finance
Document from any Obligor, such Obligor shall, within five Business Days after demand
by the Facility Agent, pay to such Finance Party an amount equal to the amount of such
liability or payment.






	 	(b)	 	Paragraph (a) of this Clause 13.2 shall not apply:






	 	(i)	 	to any Tax imposed on or calculated by reference to the overall
net income received or receivable (but not any sum deemed to be received or
receivable) by a Finance Party:






	 	(A)	 	under the law of the jurisdiction in which such
Finance Party is incorporated or any jurisdiction in which such Finance
Party is treated as resident for Tax purposes; or
	 
	 	(B)	 	under the law of the jurisdiction in which such
Finance Party’s Facility Office is located in respect of amounts
received or receivable in such jurisdiction; or






	 	(ii)	 	to the extent that such liability or payment is compensated for
by an increased payment under Clause 13.1 (Gross-up).






	 	(c)	 	A Finance Party making, or intending to make a claim pursuant to paragraph (a)
of this Clause 13.2 shall promptly notify the Facility Agent of the event which will
give rise, or has given rise, to such claim and, upon receipt of such notice, the
Facility Agent shall notify the relevant Obligor thereof.






	13.3	 	Stamp Tax
	 
	 	 	The Borrower shall pay all stamp duty, registration and notarisation fees and other similar
Taxes payable in respect of or in connection with the entry into, performance or enforcement
against any of the Obligors of any Finance Document. Within five Business Days after demand
by a Finance Party, the Borrower shall indemnify such Finance Party for any cost, loss or
liability such Finance Party incurs in relation to any such stamp duty, registration and
notarisation fees and other similar Taxes.




37









 












	13.4	 	Value Added Tax






	 	(a)	 	All consideration payable under a Finance Document by an Obligor to a Finance
Party shall be deemed to be exclusive of any VAT. If VAT is properly chargeable on any
such consideration, such Obligor shall pay to such Finance Party (in addition to such
consideration) an amount equal to the amount of such VAT unless the relevant Finance
Party has voluntarily opted for the otherwise tax free service or supply to become
subject to VAT.
	 
	 	(b)	 	If a Finance Document requires an Obligor to reimburse a Finance Party for any
costs or expenses, such Obligor shall at the same time pay to such Finance Party, and
indemnify such Finance Party for, all VAT properly incurred by such Finance Party in
respect of such costs or expenses except to the extent that such Finance Party is
entitled to repayment or credit in respect of such VAT.






	14.	 	OTHER INDEMNITIES
	 
	14.1	 	Currency Indemnity






	 	(a)	 	Following the occurrence of an Event of Default, any amount due from an Obligor
to a Finance Party under a Finance Document, or any order, judgment or award given or
made in relation to an amount due from an Obligor to a Finance Party under a Finance
Document, has to be converted from the currency in which such amount is payable into
another currency for the purpose of:






	 	(i)	 	making or filing a claim or proof against such Obligor; or
	 
	 	(ii)	 	obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,






then such Obligor shall, as an independent obligation, within five Business Days
after demand, indemnify such Finance Party for any cost, loss, expense or liability
incurred by such Finance Party as a result of such conversion, including any such
cost, loss or liability arising from a difference between (A) the rate of exchange
used to convert such amount from one currency to the other currency and (B) the rate
of exchange available to such Finance Party at the time of receipt by such Finance
Party of such amount.




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






	14.2	 	Indemnity to the Facility Agent
	 
	 	 	The Borrower shall, within five Business Days of demand, indemnify the Facility Agent
against any cost, loss or liability properly incurred by the Facility Agent as a result of:






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




38









 












	14.3	 	Break Costs






	 	(a)	 	The Borrower shall, within five Business Days of demand by a Finance Party, pay
to that Finance Party its Break Costs attributable to all or any part of a LIBOR Loan
or Overdue Amount being paid by the Borrower on a day other than the last day of an
Interest Period for that LIBOR Loan or Overdue Amount.
	 
	 	(b)	 	Each Lender shall, as soon as reasonably practicable after a demand by the
Facility Agent, provide a certificate confirming the amount of its Break Costs for any
Interest Period in which they accrue.






	14.4	 	General Indemnity
	 
	 	 	The Borrower shall, within five Business Days after demand by a Finance Party, indemnify
such Finance Party against any costs, expenses, liabilities and losses incurred by such
Finance Party (including all interest and fees that accrue after the commencement of a case
or proceeding under insolvency laws whether or not a claim is allowed), and not otherwise
recovered by such Finance Party under Clause 14.3 (Break Costs), as a result of (a) the
occurrence of an Event of Default, (b) the prepayment of any portion of any Loan on a date
other than the last day of an Interest Period, (c) the failure by the Borrower to pay any
amount when due hereunder, (d) the failure by the Borrower to borrow in accordance with a
Utilisation Request delivered pursuant to Clause 4.1 (Utilisation Conditions to LIBOR
Loans), or a Reference Rate Loan Request delivered pursuant to Clause 5.1 (Utilisation
Conditions to Reference Rate Loans) or (e) the failure by the Borrower to make any
prepayment in accordance with a notice of prepayment delivered pursuant to Clause 7
(Prepayment). Such Finance Party shall, as soon as reasonably practical after a demand by
the Facility Agent, furnish to the Facility Agent a certificate confirming the amount of any
such costs, expenses and losses and the calculation thereof. Such certificate shall, in the
absence of manifest error, be prima facie evidence of such amounts.
	 
	15.	 	GUARANTEE AND INDEMNITY
	 
	15.1	 	Guarantee and Indemnity
	 
	 	 	Each Guarantor irrevocably and unconditionally, jointly and severally:






	 	(a)	 	guarantees to each Finance Party the punctual performance by each other Obligor
of all of its Obligations under the Finance Documents;
	 
	 	(b)	 	undertakes with each Finance Party that, whenever an Obligor does not pay any
Obligations when due under or in connection with any Finance Document, such Guarantor
shall immediately on demand pay that amount as if it was the principal obligor; and
	 
	 	(c)	 	agrees, as a primary obligation and not merely as a surety, to indemnify each
Finance Party immediately on demand for any cost, loss, expense or liability incurred
by such Finance Party as a result of any Obligation guaranteed by any Obligor being or
becoming void, voidable, unenforceable, invalid or illegal, the amount of such cost,
loss or liability being equal to the amount which such Finance Party would otherwise
have been entitled to recover.




39









 












	15.2	 	Continuing Guarantee
	 
	 	 	The guarantee of each Guarantor above is a continuing guarantee and shall extend to the
ultimate balance of the Obligations payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
	 
	15.3	 	Reinstatement
	 
	 	 	If any payment by an Obligor or any discharge given by a Finance Party (whether in respect
of the obligations of any Obligor or any security for those obligations or otherwise) is
avoided or reduced as a result of insolvency or any similar event:






	 	(a)	 	the liability of each Guarantor shall continue or be reinstated, as the case
may be, as if the payment, discharge, avoidance or reduction had not occurred; and
	 
	 	(b)	 	each Finance Party shall be entitled to recover the value or amount of such
security or payment from each Guarantor, as if such payment, discharge, avoidance or
reduction had not occurred.






	15.4	 	Waiver of Defences
	 
	 	 	Each Guarantor shall be liable under Clause 15 (Guarantee and Indemnity) as if it were the
sole principal debtor and not merely a surety. Accordingly, its obligations under this
Agreement shall not be affected by (and each Guarantor hereby irrevocably waives any
defences it may now or hereafter acquire in any way relating to) any act, omission, matter
or thing which, but for this Clause 15.4, would reduce, release or prejudice any of such
obligations, including and whether or not known to it or any Finance Party:






	 	(a)	 	any time, waiver or consent granted to, or composition with, any Obligor or
other person;
	 
	 	(b)	 	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;
	 
	 	(c)	 	any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of any Obligor or other person;
	 
	 	(d)	 	any amendment, variation or modification (however fundamental) or replacement
of a Finance Document or any other document or security or any increase in the amount
of the Facility;
	 
	 	(e)	 	any unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security;
	 
	 	(f)	 	any insolvency or similar proceedings;
	 
	 	(g)	 	the making or absence of any demand on any Obligor or any other person for
payment or performance of any other obligations, or the application of any moneys at
any time received from any Obligor or any other person;





40









 











	 	(h)	 	the enforcement, perfecting or protecting of or absence of enforcement,
perfecting or protecting of any security, guarantee or undertaking (including, without
limitation, all or any of the obligations and liabilities of any Obligor or any other
person);
	 
	 	(i)	 	the release, taking, giving or abstaining from taking of any security,
guarantee or undertaking (including, without limitation, the Finance Documents);
	 
	 	(j)	 	any amalgamation, merger or change in constitution in relation to any Obligor,
any Finance Party or any other person;
	 
	 	(k)	 	any Finance Party ceasing or refraining from giving credit or making loans or
advances to or otherwise dealing with any Obligor or any other person or any other
security, guarantee or undertaking;
	 
	 	(l)	 	the failure of any Finance Party to disclose to any Obligor or any other person
any information relating to the business, assets, financial condition or prospects of
any other Obligor or any other person now or hereafter known to such Finance Party
(each Guarantor waiving any duty on the part of the Finance Parties to disclose such
information);
	 
	 	(m)	 	any defence based on an election of remedies even though such election may have
destroyed the Guarantors’ rights of subrogation or reimbursement against the principal;
or
	 
	 	(n)	 	any other circumstance which, but for this provision, might operate to release
or otherwise exonerate such Guarantor from its obligations hereunder.






	15.5	 	Immediate Recourse
	 
	 	 	Each Guarantor waives any right it may have to first require any Finance Party (or any
trustee or agent on its behalf) to proceed against or enforce any other rights or security
or to claim payment from any person before claiming from such Guarantor hereunder. Such
waiver applies regardless of any law or any provision of a Finance Document or any other
document to the contrary.
	 
	15.6	 	No Discharge of Guarantors
	 
	 	 	It is specifically acknowledged and agreed that the Finance Parties may from time to time
make any arrangement, compromise, waiver or other dealing with any Obligor or any other
person in relation to any guarantee or other obligations under the Finance Documents or any
other document which such Finance Parties may think fit and no such arrangement, compromise,
waiver or other dealing shall exonerate or discharge any other Obligor or any other person
from its obligations under the Finance Documents or any other document.
	 
	15.7	 	Obligations Continuing






	 	(a)	 	Each Obligor’s obligations under this Agreement are and will remain in full
force and effect by way of continuing security until no sum remains to be lent or
remains payable under this Agreement. Furthermore, those obligations are additional
to, and not instead of, any security or other guarantee or indemnity at any time
existing in favour of any person, whether from that Obligor or otherwise and each
Obligor waives any right it may have to require any Finance Party to enforce any such
security, guarantee or indemnity before claiming against it.





41









 





	 	(b)	 	The guarantee contained in this Clause 15 shall remain in full force and effect
and continue to be effective should (i) any petition be filed by or against any Obligor
or any Guarantor for liquidation or reorganisation, (ii) any Obligor or any Guarantor
become insolvent or make an assignment for the benefit of creditors or (iii) a receiver
or trustee be appointed for all or any significant part of such Obligor’s or such
Guarantor’s assets, and shall continue to be effective or be reinstated, as the case
may be, if at any time payment and performance of the obligations hereunder, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any Finance Party, whether as a “voidable
preference”, “fraudulent conveyance”, or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the guarantee obligations shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.






	15.8	 	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 such Finance Party (or any trustee or agent on its behalf) in respect of
such amounts or apply and enforce the same in such manner and order as it sees fit
(whether against such amounts or otherwise), and no Guarantor shall be entitled to the
benefit of the same; and
	 
	 	(b)	 	hold in a Cash Collateral Account any moneys received from any Guarantor or on
account of any Guarantor’s liability hereunder.






	15.9	 	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 all Commitments terminated and
unless the Facility Agent otherwise directs, no Guarantor shall 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 any other Obligor or any other person;
	 
	 	(b)	 	to claim any contribution or reimbursement from any other Guarantor of any
Obligor’s obligations under the Finance Documents (or any other documents); 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,






and any amount received or recovered by such Guarantor as a result of any such right shall
be held in trust and (and in circumstances where trust arrangements are not recognised as a
matter of applicable local law) as agent for the Finance Parties and immediately paid to the
Facility Agent.




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	15.10	 	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.
	 
	15.11	 	Avoidance of Payments
	 
	 	 	Each Obligor shall on demand indemnify the Facility Agent and each other Finance Party
against any funding or other cost, loss, expense or liability sustained or incurred by it as
a result of it being required for any reason to refund all or part of any amount received or
recovered by it from such Obligor in respect of any sum payable by the Borrower under the
Finance Documents.
	 
	15.12	 	Certificate
	 
	 	 	A certificate of the Facility Agent as to any amount due from any Obligor under any Finance
Document shall, in the absence of manifest error, be prima facie evidence of such amount as
against each Guarantor.
	 
	15.13	 	Limitations for US Guarantors






	 	(a)	 	This Clause 15.13 shall apply to any guarantee (hereinafter a “US Guarantee”)
granted to any Finance Party by a Guarantor organized under the laws of the USA or any
state thereof (hereinafter a “US Guarantor”). The US Guarantor and each Finance Party
(by its acceptance of the benefits of the US Guarantee) hereby confirms that it is its
intention that the US Guarantee shall not constitute a fraudulent transfer or
conveyance for the purposes of any proceedings of the type referred to in paragraphs
(g) to (m) (inclusive) of Clause 22 (Events of Default) or the Bankruptcy Code, any
similar foreign, federal or state law for the relief of debtors, the US Uniform
Fraudulent Conveyance Act, the US Uniform Fraudulent Transfer Act or any similar
foreign, federal or state law to the extent applicable to the obligations of the US
Guarantor under this Clause 15.13.
	 
	 	(b)	 	Notwithstanding any provision in this Agreement to the contrary, the US
Guarantor’s liability hereunder shall be limited to an amount not to exceed (as of any
date of determination) the greater of:






	 	(i)	 	the net amount of all Utilisations advanced under this
Agreement or any other Finance Document to any other Obligor and directly or
indirectly re-loaned or otherwise transferred to, incurred for the benefit of
the US Guarantor, plus interest thereon at the applicable rate specified in
this Agreement; or
	 
	 	(ii)	 	the amount which could be claimed by the Finance Parties from
the US Guarantor under this Clause 15 without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance
Act or similar statute or common law after taking into account among other
things, the US Guarantor’s right of contribution and indemnification from each
other Guarantor.






	 	(c)	 	Nothing contained in this Clause 15 shall limit the liability of any Obligor
with respect to any Utilisation made to it or for its direct benefit, for which it is
and shall remain directly and primarily liable.




43









 






	 	(d)	 	The US Guarantor acknowledges that the Obligations of the other Obligors
guaranteed hereunder may at any time and from time to time exceed the maximum amount of
the liability of the US Guarantor without impairing its guarantee under this Clause 15
or the rights and remedies of the Finance Parties.
	 
	 	(e)	 	To the extent that the US Guarantor shall make a payment under this Clause 15
of all or any of the Obligations of any other Obligor (a “Guarantor Payment”) which,
taking into account all other payments then previously or concurrently made by the
other Guarantors, exceed the amount that the US Guarantor would otherwise have paid if
each Guarantor had paid the aggregate Obligations satisfied by such Guarantor Payment
in the same proportion that the US Guarantor’s “Allocable Amount” (as defined below)
(as determined immediately prior to such Guarantor Payment) bore to the aggregate
Allocable Amounts of each of the Guarantors (as determined immediately prior to the
making of such Guarantor Payment), then, following indefeasible payment in full in cash
of all Obligations and termination of the Commitments, the US Guarantor shall be
entitled to receive contribution and indemnification payments from, and be reimbursed
by, each other Guarantor for the amount of such excess, pro rata based upon their
respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
	 
	 	 	 	As of any date of determination, the “Allocable Amount” of the US Guarantor shall be
equal to the maximum amount of the claim that could then be recovered from the US
Guarantor under this Clause 15 without rendering such claim voidable or avoidable
under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state
Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law and the “Allocable Amount” of any other Guarantor shall be
equal to the maximum amount of the claim that could then be recovered from such
other Guarantor without voiding or making unenforceable or illegal such liability or
payment under applicable laws.






	15.14	 	Limitation on Swiss Guarantors
	 
	 	 	If and to the extent that the Borrower or the Swiss Parent is liable pursuant to this
Agreement for obligations other than obligations of one of its Subsidiaries or in relation
to its own borrowings, then such obligations shall be (to the extent it is required under
applicable law in force at the relevant time) limited to the extent and maximum amount of
such Obligor’s respective profits and reserves available for distribution as dividends at
the time or times payment is requested under this Agreement (i.e., the balance sheet profits
and any freely disposable reserves, in each case determined in accordance with the relevant
provisions of the Swiss Code of Obligations), as evidenced by an audited (interim) balance
sheet and less Swiss withholding tax (if and to the extent required by applicable law in
force at the relevant time, at the rate of currently 35%.)






	16.	 	SECURITY




The obligations and liabilities of the Obligors to the Finance Parties under the Finance Documents
shall be secured for the duration of the Term by the interests and rights granted in favour of the
Security Agent, inter alia, as agent and/or, as the case may be, trustee for the Finance Parties
under the Security Documents.




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	17.	 	REPRESENTATIONS AND WARRANTIES
	 
	17.1	 	Representations and Warranties
	 
	 	 	The Borrower and each of the Guarantors (other than, in the case of paragraphs (m), (n),
(v), (z), (bb), the US Parent) represents and warrants to each of the Finance Parties, for
itself and such of its Subsidiaries as are specified only, that:






	 	(a)	 	Status It is a company or partnership, duly incorporated or organised and
validly existing under the laws of its jurisdiction of incorporation or organisation,
possesses the capacity to sue and be sued in its own name and has the power to own its
property and assets and carry on its business as it is now being and will be conducted.
	 
	 	(b)	 	Powers and Authority It has the power and capacity to (i) execute, deliver and
exercise its rights and perform its obligations under each Finance Document to which it
is a party; (ii) carry out the transactions contemplated by those documents and has
taken all necessary corporate, shareholder and other action to authorise the execution,
delivery and performance of those documents and transactions; and (iii) make each of
the Finance Documents to which it is a party admissible in evidence in the courts of
the jurisdiction to which it has submitted in such Finance Document.
	 
	 	(c)	 	Legal Validity each Finance Document to which it is or will become a party
(when executed by it or on its behalf) will constitute, its legal, valid, binding and
enforceable obligations and (without limiting the generality of the foregoing) any
Security Document to which it is a party creates the security interests which that
Security Document purports to create or, as the case may be, accurately evidences a
security interest which has been validly created.
	 
	 	(d)	 	Non Conflict The entry into and performance by it of each Finance Document to
which it is a party and the transactions to be implemented pursuant thereto do not and
will not conflict with:






	 	(i)	 	any applicable law or regulation or any legally binding order
of any Governmental Authority, or other official authority, body or agency or
any judgment, order or decree of any court having jurisdiction over it; or
	 
	 	(ii)	 	the provisions of its constitutional or governing documents or
any of its resolutions (having current effect); or
	 
	 	(iii)	 	any material agreement or instrument to which it is a party or
which is binding upon it or on its assets,
	 
	 	 	 	nor will it result in the creation or imposition of any Encumbrance on any of its
assets (save for any Encumbrance created pursuant to the Security Documents).






	 	(e)	 	Insolvency






	 	(i)	 	It has neither taken any corporate action nor have any steps
(including the filing of a petition or making of an application or otherwise)
been taken or legal proceedings started or, to the best of its knowledge or
belief, threatened against it by any person:






	 	(A)	 	for its winding-up, dissolution, administration
or re-organisation (whether by voluntary arrangement, scheme of
arrangement or otherwise); or




45









 






	 	(B)	 	for the enforcement of any Encumbrance over all
or any material part of its assets or all or any material part of its
assets; or
	 
	 	(C)	 	for the appointment of a receiver,
administrator, administrative receiver, receiver and manager, manager,
trustee or similar officer in respect of it or in respect of any
material part or all of its assets or revenues; or
	 
	 	(D)	 	any other similar events under any applicable law in any jurisdiction.






	 	(ii)	 	Paragraph (i) above shall not apply to:






	 	(A)	 	any frivolous or vexatious step or proceeding
which is dismissed, withdrawn or discharged, within 10 days of being
presented; or
	 
	 	(B)	 	any solvent liquidation or reorganisation
previously approved by the Facility Agent in writing.






	 	(iii)	 	it is neither insolvent nor unable to pay its debts as they
fall due, nor could it be deemed by a court to be unable to pay its debts, in
each case within the meaning of the law of the jurisdiction in which it is
incorporated, nor does it lack capital sufficient to carry on its business as
conducted or proposed to be conducted, nor, in any such case, will it become so
in consequence of entering into any Finance Document to which it is a party
and/or performing any transaction contemplated by any Finance Document to which
it is a party.






	 	(f)	 	No Default






	 	(i)	 	No Default has occurred and is continuing or is reasonably
likely to result from the making of any Utilisation or the entry into, the
performance of, or any transaction contemplated by, any Finance Document.
	 
	 	(ii)	 	No other event or circumstance is outstanding that constitutes
a default under any other agreement or instrument which is binding on it or to
which its assets are subject which could reasonably be expected to have a
Material Adverse Effect.






	 	(g)	 	Consents Any and all authorisations, approvals, consents, licences, exemptions
and other matters required on the part of any Obligor pursuant to any applicable law or
in consequence of (i) the entry into and performance by it of and/or the validity of
any of the Finance Documents to which it is a party or to carry out the transactions
contemplated thereby and/or (ii) the continued carrying on of its business, have been
obtained or made and are in full force and effect or will be obtained or made and will
be in full force and effect prior to the date required by applicable law, save for
filings, records or registrations required in relation to the security constituted by
the Security Documents (each Obligor will take all necessary actions to enable the
Security Agent to affect all such filings and registrations within the applicable time
periods).
	 
	 	(h)	 	Governing Law and Enforcement In any legal proceedings taken in its Relevant
Jurisdiction, the choice of law expressed in each Finance Document to be its governing
law and any judgment obtained in the Relevant Jurisdiction in relation to a Finance
Document will be recognised and enforced.
	 
	 	(i)	 	No Filing or Stamp Taxes Under the laws of its Relevant Jurisdiction it is not
necessary that the Finance Documents be filed, recorded or enrolled with any court or




46









 






	 	 	 	other authority in that jurisdiction or that any stamp, registration, notarial or
similar Taxes or fees be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents, other than those filings which
are necessary in connection with the Security Documents (including the perfection of
Security constituted thereby) and as otherwise expressly provided in the relevant
Finance Documents, which registrations, filings, taxes and fees will be made and
paid promptly after the date of the relevant Finance Document.
	 
	 	(j)	 	Financial Information and Base Financial Statements






	 	(i)	 	Its Financial Statements most recently delivered to the
Facility Agent under Clause 18.1 (Financial Statements): (A) have been
prepared, save as disclosed in notes to or accompanying those Financial
Statements, in accordance with the provisions of Clause 18.6 (Accounting
Standards); (B) fairly represent in accordance with the Approved Accounting
Principles its and (if consolidated Financial Statements) its Subsidiaries’
financial position as at the date to which the same were prepared and/or (as
appropriate) the results of operations and (in the case of annual Financial
Statements) changes in financial position during the Financial Year concerned;
and (C) show all material liabilities (contingent or otherwise) of the Group as
at such date.
	 
	 	(ii)	 	Each of the information, reports and documents delivered to the
Facility Agent under Clause 18.3 (Notifications) was true and accurate in all
material respects as of the date thereof and did not omit any material
information required to be included therein in order to make the statements
contained therein not materially misleading in light of the circumstances under
which such statements are made.
	 
	 	(iii)	 	All forecasts and projections provided by or on behalf of an
Obligor to the Facility Agent under or in connection with this Agreement were
arrived at after due and careful consideration, were (at the time such
forecasts and projections were made) fair and were based on assumptions
believed to be reasonable when made.
	 
	 	(iv)	 	The Base Financial Statements:






	 	(A)	 	have been prepared in accordance with Approved
Accounting Principles consistently applied;
	 
	 	(B)	 	fairly represent in accordance with the
Approved Accounting Principles, the consolidated financial condition
and results of operations of the Group as at and for the accounting
period ended the date to which they were drawn up; and
	 
	 	(C)	 	do not include or consolidate the results of
any company or business which is not part of the Group.






	 	(v)	 	On or prior to the first Utilisation Date, there has been no
material adverse change in its assets, business or financial condition (or, in
the case of the US Parent, the assets, business or financial condition of the
Group) and no event has occurred in relation to it which has had or could
reasonably be expected to otherwise have a Material Adverse Effect since the
latest date to which any of the Base Financial Statements were drawn up (or in
the case of the




47









 






	 	 	 	projections listed in paragraph (c) of the definition of Base
Financial Statements, the date on which they were prepared).






	 	(k)	 	Litigation No litigation, arbitration or administrative or regulatory
proceedings or investigations for which process or initiation claims have been served
on it or any of its Subsidiaries exist and no litigation, arbitration, administrative
or regulatory proceedings involving it are pending or, to the best of its knowledge or
belief, threatened, which, in each case, are reasonably likely to be determined
adversely to it and which, if so adversely determined, would reasonably be expected to
have a Material Adverse Effect.
	 
	 	(l)	 	Tax No claims are being or are reasonably likely to be asserted against it
with respect to Taxes which are reasonably likely to be determined adversely to it and
which, if so adversely determined, would reasonably be expected to have a Material
Adverse Effect. It is not overdue, including applicable extensions of time to file, in
the filing of any Tax returns required to be filed and it has paid all Taxes shown to
be due on any Tax returns required to be filed by it or on any assessments made against
it (other than any Taxes being contested in good faith by appropriate process in
respect of which appropriate reserves are being maintained in accordance with Approved
Accounting Principles), the failure to file, non payment, or a claim for payment, of
which would reasonably be expected to have a Material Adverse Effect.
	 
	 	(m)	 	Encumbrances No Encumbrance (or agreement to create the same) exists on or
over its assets save for Permitted Encumbrances.
	 
	 	(n)	 	Indebtedness It has not incurred (or agreed to incur) any Indebtedness save
for Permitted Indebtedness.
	 
	 	(o)	 	Information All written information, representations, warranties and
statements made or provided by or on behalf of the Obligors comprised in the
Information was true and accurate (or, in the case of information prepared and/or
provided at the request of an Obligor by any person other than the Obligors or their
advisors, was true and accurate to the best of its knowledge and belief) in all
material respects at the date (if any) ascribed thereto in the Information or (if none)
at the date of the relevant component of the Information. All expressions of opinion
or intention and all forecasts and projections provided by the Obligors contained in
the Information were arrived at after careful consideration, were at the date made fair
and were based on assumptions believed to be reasonable at the time made. The
Information as of its date was not misleading in any material respect and did not omit
to disclose or take into account any matter known to any Obligor or any of its board of
directors where failure to disclose or take into account such matter would result in
the Information (or any information or projection contained therein) being misleading
in any material respect, and nothing has occurred or come to light since the date of
any of the Information which, insofar as any Obligor or any of its board of directors
is aware, renders any material facts forming the basis thereof materially inaccurate or
misleading or which makes any of the projections or forecasts contained therein unfair
or unreasonable or renders any of the assumptions upon which the projections are based
unfair or unreasonable.
	 
	 	(p)	 	No Breach of Laws
	 
	 	 	 	It has not breached any law or regulation which breach has or is reasonably likely
to have a Material Adverse Effect.
	 
	 	(q)	 	Share Capital and Group Structure




48









 












	 	(i)	 	The shares or equivalent ownership interests of any Obligor
which are expressed to be (or are required by any Finance Document to be or
become)
subject to any Security under any Security Document are duly authorised,
validly issued, fully paid, non-assessable and freely transferable (other
than restrictions solely deriving from applicable mandatory laws) and there
are no moneys or liabilities outstanding or payable in respect of any share
or equivalent ownership interests.
	 
	 	(ii)	 	No person has or is entitled to 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 capital or loan
capital of any Obligor (including any right of pre-emption, conversion or
exchange).
	 
	 	(iii)	 	The shares or equivalent ownership interests of (x) the
Borrower are wholly owned by the Swiss Parent and (y) the Swiss Parent are
wholly owned by the US Parent.
	 
	 	(iv)	 	There are no agreements (other than management or employees
share option schemes) in force or corporate resolutions passed which require or
might require the present or future share issue or allotment of any share
capital or loan capital of any Obligor (including any right of pre-emption,
conversion or exchange).
	 
	 	(v)	 	The shares or equivalent ownership interests of any Obligor
which are expressed to be (or are required by any Finance Document to be or
become) subject to any Security under any Security Document constitute all the
share capital of the relevant member of the Group.
	 
	 	(vi)	 	The Group Structure Chart is complete and accurate as to the
Obligors in all material respects as of the Signing Date.






	 	(r)	 	Ownership of Assets
	 
	 	 	 	It has legal and beneficial title to or valid leases or licences of or is otherwise
entitled to use all assets (i) necessary to conduct its business except to the
extent the absence of which would not reasonably be expected to have a Material
Adverse Effect and (ii) in respect of which the Security has been granted.
	 
	 	(s)	 	Ranking The Security has or will have first ranking priority and it is not
subject to any prior ranking or pari passu ranking Encumbrance (other than any
Encumbrance mandatorily preferred by law).
	 
	 	(t)	 	Documents All documents delivered to the Facility Agent by or on behalf of any
Obligor pursuant to the Finance Documents on or prior to the Signing Date were genuine,
and in the case of copy documents, were true, complete and accurate copies in all
material respects of originals, which had not been amended, varied, supplemented or
superseded in any way which would be likely to adversely affect the interests of the
Lenders under the Finance Documents in any material respect.
	 
	 	(u)	 	Environmental Matters






	 	(i)	 	It has obtained any and all requisite Environmental Licences
required for the carrying on of its business as currently conducted and have at
all times complied in all material respects with (A) the terms and conditions
of such Environmental Licences and (B) all other applicable Environmental Laws




49









 






	 	 	 	which in each case, if not complied with or obtained, would reasonably be
expected to result in a Material Adverse Effect and there are, to its
knowledge, no circumstances which may prevent or interfere with such
compliance in the future.
	 
	 	(ii)	 	No Dangerous Substance has been used, disposed of, generated,
stored, transported, dumped, released, deposited, buried or emitted at, on,
from or under any site or premises (whether in respect of any site previously
or currently owned, leased, occupied or controlled by it and including any
offsite waste management or disposal location utilised by it in circumstances
where this would be likely to result in the imposition of a liability on it
which would result in a Material Adverse Effect.
	 
	 	(iii)	 	There is no Environmental Claim (whether in respect of any
site previously or currently owned, leased, occupied or controlled by it and
including any offsite waste management or disposal location utilised by it)
pending or (to the best of its knowledge and belief after due and careful
enquiry) threatened, and there are no past or present acts, omissions, events
or circumstances that would be likely to form the basis of any Environmental
Claim (whether in respect of any site previously or currently owned, leased,
occupied or controlled by it and including any offsite waste management or
disposal location utilised by it), against it which in each case is reasonably
likely to be determined against it and which if so determined would reasonably
be expected to result in a Material Adverse Effect.






	 	(v)	 	Intellectual Property






	 	(i)	 	So far as it is aware, it owns or has the legal right to use
all of the Intellectual Property Rights which are material to the conduct of
its business or are required by it in order for it (or them) to carry on its
business in all material respects.
	 
	 	(ii)	 	So far as it is aware, its operations do not infringe any
Intellectual Property Rights held by any third party which infringement has or
would reasonably be expected to have a Material Adverse Effect.
	 
	 	(iii)	 	No written claim by any third party alleging any infringement
of, or any litigation proceedings relating to, registered Intellectual Property
Rights owned by itself which would reasonably be expected to have a Material
Adverse Effect remain outstanding.






	 	(w)	 	Pensions and ERISA Compliance






	 	(i)	 	Each Plan is, in form and operation, in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law. Each Plan which is intended to qualify under Section
401(a) of the Code has received a favourable determination letter from the IRS
and to the best knowledge of the Obligors, nothing has occurred (that has not
been corrected in accordance with procedures established by the IRS) which
would cause the loss of such qualification. The Obligors and each ERISA
Affiliate have made all required contributions to any Plan subject to Section
412 of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.




50









 






	 	(ii)	 	There are, to the best knowledge of the Obligors, no pending or
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with
respect to any Plan or Foreign Plan which has had or could reasonably be
expected to have a Material Adverse Effect. There has been no non-exempt
prohibited transaction or violation of the fiduciary responsibility rules
with respect to any Plan or Foreign Plan which had or could reasonably be
expected to have a Material Adverse Effect. There are, to the best knowledge
of the Obligors, no circumstances that could reasonably be expected to
result in (i) any liability with respect to any Plan or Foreign Plan, which
liability is not fully funded or fully insured and which could reasonably be
expected to have a Material Adverse Effect; or (ii) any liability for
failure to provide Foreign Benefits which could reasonably be expected to
have a Material Adverse Effect.
	 
	 	(iii)	 	(i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has incurred an “accumulated funding deficiency”
within the meaning of Section 302 of ERISA or Section 412(a) of the Code as of
the end of the most recently completed plan year; (iii) neither the Obligors
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) neither the
Obligors nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Obligors nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA and that could reasonably be
expected to have a Material Adverse Effect.
	 
	 	(iv)	 	Each Foreign Plan has been maintained in substantial compliance
with its terms and with the requirements of any and all applicable laws,
statutes, rules, regulations, orders and trust documentation and has been
maintained, where required, in good standing with applicable regulatory
authorities. All material contributions required to be made with respect to a
Foreign Plan have been timely made. The accrued benefit liabilities (whether
or not vested) under each Foreign Plan which is funded, as of the end of the
most recently ended fiscal year of each such Foreign Plan (determined in
accordance with current statutory requirements and on the basis of reasonable
actuarial assumptions under Approved Accounting Principles) did not exceed the
fair market value of assets held by or attributed to such Foreign Plan. The
accrued benefit liabilities (whether or not vested) under each Foreign Plan
which is not funded have been appropriately reflected on the books and records
of the applicable member of the Group in accordance with local law, past
practice and Approved Accounting Principles in the relevant jurisdiction of
that member of the Group.
	 
	 	(v)	 	Each Foreign Plan which is funded has been, as of the end of
the most recently ended fiscal year of such Foreign Plan, funded to at least
the minimum level required by law or, if higher, the minimum level required by
the terms of its governing documentation.






	 	(x)	 	Accounting reference date The Accounting Reference Date of each Obligor is 31
December.




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	 	(y)	 	US Government Regulations






	 	(i)	 	It is not an “investment company”, or an “affiliated person”
of, or “promoter” or “principal underwriter” for, an “investment company”, as
such terms are defined in the US Investment Company Act of 1940, as amended.
Neither the making of any Utilisation, nor the application of the proceeds or
repayment thereof by any Obligor, nor the consummation of the other
transactions contemplated hereby, will violate any provision of such act or any
rule, regulation or order of the US Securities and Exchange Commission
thereunder.
	 
	 	(ii)	 	It is not a “holding company”, or a “subsidiary company” of a
“holding company”, or an “affiliate” of a “holding company” or of a “subsidiary
company” of a “holding company”, as such terms are defined in the US Public
Utility Holding Company Act of 1935, as amended. It is not subject to
regulation under any US federal or state law or regulation that restricts its
ability to incur Indebtedness or perform its obligations under any Finance
Document.
	 
	 	(iii)	 	No Obligor is engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U, T and X of the Board of Governors of the Federal Reserve System
of the United States of America) as in effect from time to time, and no
proceeds of any Utilisation will be used to purchase or carry any margin stock,
to reduce or retire any Indebtedness incurred to purchase or carry margin
stock, or to extend credit to others for the purpose of purchasing or carrying
any margin stock.






	 	(z)	 	Insurance The insurances required by Clause 19.4 (Insurance) are in full force
and effect as required by this Agreement and no event or circumstance has occurred
which would entitle any insurer to reduce or avoid its liability under any such
insurance where such event, circumstance or failure could reasonably be expected to
have a Material Adverse Effect.
	 
	 	(aa)	 	Receivables






	 	(i)	 	Each existing Receivable of the Borrower represents, and each future
Receivable of the Borrower will represent, a bona fide sale or lease and delivery
of goods by the Borrower, or the rendering of services by the Borrower in the
ordinary course of the Borrower’s business.
	 
	 	(ii)	 	Each existing Eligible Receivable of the Borrower is, and each future
Eligible Receivable of the Borrower will be, for a liquidated amount payable by the
Account Debtor thereon on the terms set forth in the invoice therefor or in the
schedule thereof delivered to the Facility Agent.
	 
	 	(iii)	 	No payment will be received with respect to any Receivable of the
Borrower, and no credit, discount, or extension, or agreement therefor will be
granted on any Receivable of the Borrower, except as reported to the Facility Agent
in accordance with this Agreement.
	 
	 	(iv)	 	Each copy of an invoice delivered to the Facility Agent will be a
genuine copy of the original invoice sent to the Account Debtor named in it.




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	 	(v)	 	All goods described in any invoice representing a sale of goods will
have been delivered or dispatched to the Account Debtor and all services of the
Borrower described in any invoice will have been performed.
	 
	 	(vi)	 	Each existing Eligible Receivable of the Borrower, and each future
Eligible Receivable of the Borrower is legally and beneficially owned by it with
good title and is not subject to any Encumbrance other than Permitted Encumbrances
arising under sub-clause (a) of such definition.
	 
	 	(vii)	 	Each Eligible Receivable may be assigned to the Security Agent under the
terms and conditions and the laws applicable to such Eligible Receivable.
	 
	 	(viii)	 	Each Borrowing Base Certificate and the information delivered to the Facility
Agent by the Borrower pursuant to Clause 18.8 (Collateral Reporting) will be true,
complete and accurate in all material respects when delivered.






	 	(bb)	 	No Financial Assistance The entry into and performance of all obligations
under the Finance Documents shall not breach or otherwise violate any laws or
regulations prohibiting the granting of “financial assistance” or equivalent provisions
in any jurisdictions.
	 
	 	(cc)	 	Anti-Terrorism Laws None of the Borrower or its Affiliates is in violation of
any Anti-Terrorism Law, or engages in or conspires to engage in any transaction that
attempts to violate, or otherwise evades or avoids (or has the purpose of evading or
avoiding) any prohibitions set forth in any Anti-Terrorism Law. None of the Borrower
or its Affiliates (a) is a Blocked Person; (b) conducts any business or engages in
making or receiving any contribution of funds, goods or services to or for the benefit
of any Blocked Person; (c) has any of its assets in a Blocked Person; (d); deals in, or
otherwise engages in any transaction relating to, any assets blocked pursuant to
Executive Order No. 13224; or (e) derives any of its operating income from investments
in or transactions with a Blocked Person.






	17.2	 	Repetition
	 
	 	 	The representations and warranties set out in Clause 17.1 (Representations and Warranties)
shall survive the execution of this Agreement and the making of each Utilisation hereunder
and:






	 	(a)	 	in the case of each Obligor party hereto, are made on the date of execution of
this Agreement and on the date of the first Utilisation; and
	 
	 	(b)	 	with the exception of the representations and warranties set out in paragraphs,
(e), (f)(ii), (i), (j)(v), (o), (q)(ii), (iii), (iv), (v) and (vi) and (x), of Clause
17.1 (Representations and Warranties) which shall not be repeated after the date of the
first Utilisation, and Clause 17.1(t) and (aa)(viii) (Representations and Warranties)
which shall be made or repeated once only with respect to each document therein
referred to on the date of delivery of such document), the representations and
warranties set out in Clause 17.1 (Representations and Warranties) are deemed to be
repeated by each relevant Obligor on the date of each Utilisation Request the date of
each Utilisation and on each Interest Payment Date with reference to the facts and
circumstances then existing.




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	18.	 	INFORMATION UNDERTAKINGS




Unless otherwise agreed in writing by the Majority Lenders (acting reasonably), as long as any
Obligations or any Commitments remain outstanding each Obligor agrees to the following undertakings
with each of the Finance Parties.





	18.1	 	Financial Statements
	 
	 	 	The US Parent and the Borrower shall furnish or procure that there shall be furnished to the
Facility Agent (for the avoidance of doubt, Financial Statements required to be publicly
filed by the US Parent with the Securities and Exchange Commission may be furnished by way
of electronic transmission; provided that the Facility Agent shall be entitled to require
that the same be furnished in hard copy (or other acceptable format) in the event of its or
any Lenders difficulty in accessing the same):






	 	(a)	 	as soon as practicable (and in any event within 90 days) after the end of each
Financial Year of the Group, the audited consolidated financial statements of the US
Parent and the Group and the Borrower Reporting Package for and as at the end of such
Financial Year;
	 
	 	(b)	 	as soon as practicable (and in any event within 45 days) after the end of each
Financial Quarter commencing after the date of this Agreement, the unaudited
consolidated financial statements of the US Parent and the Group and the Borrower
Reporting Package for and as at the end of the relevant Financial Quarter (together,
the “Quarterly Accounts”);
	 
	 	(c)	 	as soon as practicable (and in any event within 30 days) after the end of each
monthly accounting period commencing with the first monthly accounting period to
commence after the date of this Agreement, the Borrower Reporting Package for and as at
the end of such monthly accounting period; and
	 
	 	(d)	 	as soon as practicable (and in any event not later than the date falling 60
days after the start of each Financial Year) the projections of the Group and the
Borrower’s financial condition, results of operations and, with respect to the Group,
cashflow for the next following Financial Year (the “Projections”).






	18.2	 	Compliance
	 
	 	 	Each of the US Parent, the Swiss Parent and the Borrower shall ensure that:






	 	(a)	 	each set of annual Financial Statements (excluding the Borrower Reporting
Package) delivered pursuant to paragraph (a) of Clause 18.1 (Financial Statements)
shall be accompanied by a report signed by the Auditors in such form and with such
content as the Facility Agent and such Auditors may agree (each acting reasonably); and
	 
	 	(b)	 	each set of Financial Statements delivered by it pursuant to paragraph (a) and
(b) of Clause 18.1 (Financial Statements) shall be accompanied by a Compliance
Certificate signed by one director or manager (gérant) of the relevant person.






	18.3	 	Notifications
	 
	 	 	The Borrower shall furnish or procure that there shall be furnished to the Facility Agent in
sufficient copies for each of the Lenders, promptly (unless otherwise stated):




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	 	(a)	 	after becoming aware of the same being instituted or threatened, details of any
litigation, arbitration or administrative proceedings involving it or any other Obligor
which would reasonably be expected to have a Material Adverse Effect;
	 
	 	(b)	 	such further information regarding its financial condition, business and assets
and that of the Group and/or any member thereof (including any reasonably requested
amplification or explanation of any item in any Financial Statements, forecasts,
projections or other material provided by any Obligor hereunder) as the Facility Agent
may reasonably request from time to time;
	 
	 	(c)	 	upon becoming aware of the same being instituted, each Environmental Claim
which could reasonably be expected to result in a Material Adverse Effect;
	 
	 	(d)	 	upon becoming aware of the same, details of any labour dispute affecting any
Obligor which has or would reasonably be expected to have a Material Adverse Effect;
	 
	 	(e)	 	details of all transfers of shares or equivalent ownership interests in the
share capital of the Borrower or the Swiss Parent and details of any issue or transfer
of shares or equivalent ownership interests in the capital of any member of the Group;
	 
	 	(f)	 	written details of any Default forthwith upon becoming aware of the same, and
of all remedial steps being taken and proposed to be taken in respect of that Default;
	 
	 	(g)	 	details of any dividend payment or other distribution made by the Borrower or
Swiss Parent in accordance with Clause 20.8 (Dividends); and
	 
	 	(h)	 	such information relating to its financial condition or operation, or those of
its subsidiaries or relating to any of its assets which are subject to Encumbrances
created or purported to be created by the Security Documents as the Facility Agent (or
any Lender through the Facility Agent) may from time to time reasonably request.






	18.4	 	Year-end






	 	(a)	 	The US Parent shall not change its Accounting Reference Date and shall procure
that each Financial Year-end of each member of the Group falls on the Accounting
Reference Date.
	 
	 	(b)	 	The US Parent shall procure that each quarterly accounting period and each
Financial Quarter of each member of the Group ends on a Quarter Date.






	18.5	 	Audit
	 
	 	 	The US Parent will ensure that:






	 	(a)	 	the annual Financial Statements to be delivered to the Facility Agent pursuant
to paragraph (a) of Clause 18.1 (Financial Statements) are audited by the Auditors;
	 
	 	(b)	 	both it and each Obligor shall at all times have duly appointed Auditors or, in
the event of resignation of the Auditors, shall appoint replacement Auditors within a
reasonable time.






	18.6	 	Accounting Standards






	 	(a)	 	The US Parent and the Borrower shall ensure that each set of Quarterly Accounts
shall be in a form reasonably acceptable to the Facility Agent and shall include a




55









 






	 	 	 	consolidated balance sheet and profit and loss account and, with respect to the US
Parent on a consolidated basis, cashflow statement.
	 
	 	(b)	 	The US Parent and the Borrower shall procure that each set of monthly Financial
Statements of the Borrower shall be in a form reasonably acceptable to the Facility
Agent and include a balance sheet and profit and loss account.
	 
	 	(c)	 	The US Parent and the Borrower shall procure that each set of Financial
Statements delivered pursuant to paragraphs (a), (b) and (c) of Clause 18.1 (Financial
Statements) is prepared using Approved Accounting Principles (in the case of annual
audited Financial Statements) or in a manner consistent with Approved Accounting
Principles (in the case of such other Financial Statements), and is prepared using
consistent accounting practices and financial reference periods, unless, in relation to
any set of financial statements, the US Parent or the Borrower notifies the Facility
Agent that there has been a change in Approved Accounting Principles, the accounting
practices or reference periods and its Auditors (or, if appropriate, the Auditors of
the Obligor), and delivers to the Facility Agent:






	 	(i)	 	a description of any change necessary for those Financial
Statements to reflect the Approved Accounting Principles, accounting practices
and reference periods upon which the Base Financial Statements (if any) were
prepared; and
	 
	 	(ii)	 	sufficient information, in form and substance as may be
reasonably required by the Facility Agent, to enable the Lenders to determine
whether the undertakings set forth in Clause 21 (Financial Covenants) have been
complied with and to make an accurate comparison between the financial position
indicated in those Financial Statements.






	 	(d)	 	If the US Parent or the Borrower notifies the Facility Agent of a change in
accordance with paragraph (c) above then the US Parent and the Borrower and the
Facility Agent shall, at the Facility Agent’s request, enter into negotiations in good
faith with a view to agreeing:






	 	(i)	 	whether or not the change would reasonably be expected to
result in any material alteration in the commercial effect of any of the terms
of this Agreement; and
	 
	 	(ii)	 	if so, any amendments to this Agreement which may be necessary
to ensure that the change does not result in any material alteration in the
commercial effect of those terms,






	 	 	 	and if any amendments are agreed they shall take effect and be binding on each of
the parties in accordance with their terms. Any reference in this Agreement to
those Financial Statements shall be construed as a reference to those Financial
Statements as adjusted to reflect the basis upon which the Base Financial Statements
were prepared.






	 	(e)	 	If no such agreement is reached within 45 days of that notification of change,
the Facility Agent shall (if so requested by the Majority Lenders) instruct the
Auditors or independent accountants (approved by the US Parent and the Borrower, such
approval not to be unreasonably withheld or delayed) to determine any amendment to
Clause 21 (Financial Covenants) (including the definitions in respect thereof) and any
other terms of this Agreement which those Auditors or, as the case may be, accountants
(acting as experts and not arbitrators) consider appropriate to ensure the




56









 






	 	 	 	change does not result in any material alteration in the commercial effect of the
terms of this Agreement. Those amendments shall take effect when so determined by
those Auditors, or as the case may be, accountants. The reasonable cost and expense
of those Auditors or accountants shall be for the account of the US Parent and the
Borrower.






	18.7	 	Borrowing Base Availability Determination






	 	(a)	 	Subject to sub-clause (b) below, the Borrower shall:






	 	(i)	 	deliver or procure the delivery of a Borrowing Base Certificate
as a condition precedent to the Initial Funding Date (prepared as of the last
day of the immediately preceding calendar month) and, following the Initial
Funding Date, shall deliver or procure the delivery of the same as soon as
available and in any event not later than the twentieth day following the last
day of the preceding calendar month; or
	 
	 	(ii)	 	during the continuance of an Event of Default at such intervals
as shall be requested by the Facility Agent.






	 	(b)	 	At its option upon giving at least 60 days’ notice in writing to the Facility
Agent, the Borrower may elect to deliver Borrowing Base Certificates on a weekly or
daily basis as an alternative to delivery of such certificates monthly in accordance
with sub- clause (a) above. Following such election:






	 	(i)	 	in the event that the Borrower elects to deliver Borrowing Base
Certificates on a weekly basis, the Borrower shall deliver or procure the
delivery of the same (prepared as of the last day of the immediately preceding
week) on or before 11:00 a.m. (London time) on the Tuesday following the end of
the preceding week; and
	 
	 	(ii)	 	in the event that the Borrower elects to deliver Borrowing Base
Certificates on a daily basis, the Borrower shall deliver or procure the
delivery of the same (prepared as of the day just ended) on or before 11:00
a.m. (London time) of each Business Day.






	 	(c)	 	The Borrower may elect to change the timing of delivery of Borrowing Base
Certificates following any initial election pursuant to sub-clause (b) above upon the
giving of at least 60 days’ notice in writing to the Facility Agent to deliver such
certificates, daily, weekly or monthly as applicable. The Borrower may only make two
such elections in any calendar year,
	 
	 	(d)	 	Each Borrowing Base Certificate shall:






	 	(i)	 	be executed by an Authorised Signatory of the Borrower; and
	 
	 	(ii)	 	contain such information as to Eligible Receivables as the
Facility Agent may reasonably request.






	 	(e)	 	Subject to paragraph (f) below, upon receiving at least five Business Days’
notice from the Facility Agent (or without notice following an Event of Default which
is continuing), the Borrower will permit the Facility Agent or any person authorised by
the Facility Agent to have access to its premises during ordinary business hours (and,
following the occurrence of an Event of Default, without limitation) to carry out (at
the Borrower’s sole cost and expense) such inspections, investigations, audits,




57









 






	 	 	 	evaluations and reviews as the Facility Agent shall reasonably (unless a Default has
occurred and is continuing) require in connection with:






	 	(i)	 	the calculation of Borrowing Base Availability of the Borrower;
	 
	 	(ii)	 	following the occurrence of any Event of Default, the operating
facilities and practices of the Borrower; and
	 
	 	(iii)	 	the Receivables (including such test and physical
verifications of the Receivables in such manner and through such medium as the
Facility Agent reasonably considers advisable),






	 	 	 	and the Borrower shall furnish all such reasonable assistance and information as the
Facility Agent may require in connection therewith.
	 
	 	(f)	 	Unless an Event of Default is continuing, the Facility Agent may only exercise
its rights in relation to paragraphs (e)(i), (ii) and (iii) above, once in any three
month period.
	 
	 	(g)	 	Following the Initial Funding Date, the Borrower shall promptly notify the
Facility Agent in writing in the event that at any time the Borrower receives or
otherwise gains knowledge that any of the conditions listed in Clause 3.2(a)
(Additional Conditions Precedent) is no longer true as a result of a decrease therein,
in which case such notice shall also include the amount of such excess.
	 
	 	(h)	 	Promptly following receipt, the Facility Agent shall deliver to each Lender a
copy of each Borrowing Base Certificate received from the Borrower.






	18.8	 	Collateral Reporting
	 
	 	 	The Borrower shall deliver the following information and documents at the following times
with all amounts expressed in Dollars and otherwise in form and substance satisfactory to
the Facility Agent in respect of the Borrower:






	 	(a)	 	on a monthly basis and in any event no later than the twentieth day following
the last day of the preceding calendar month, a schedule of Receivables, collections
received and credits issued, together with such further information, reports and copies
of documents regarding Receivables as the Facility Agent may from time to time request;
	 
	 	(b)	 	as soon as practicable and in any event not later than the twentieth day
following the last day of the preceding calendar month or (following the occurrence of
a Default which is continuing) at such times as the Facility Agent may request:






	 	(i)	 	ageings of creditors, together with details of each relevant
creditor’s name and account number, and ageing categorised as falling (v)
current, (w) 1 to 30 days past due, (x) 31 to 60 days past due, (y) 61-90 days
past due and (z) 90 to 120 days past due; and
	 
	 	(ii)	 	ageings of Receivables by customer, together with details of
each relevant customer’s name, account number and full address, each invoice
number and currency, and ageing categorised as falling (v) current, (w) 1 to 30
days past due, (x) 31 to 60 days past due, (y) 61-90 days past due and (z) 90
to 120 days past due,




58









 






	 	 	 	in each case in respect of the immediately preceding calendar month;






	 	(c)	 	promptly upon becoming aware of the same, details of any Receivables which have
become or are purported to be, by the relevant Account Debtor or otherwise, subject to
any prohibitions or restriction on charge or assignment; and
	 
	 	(d)	 	at the Facility Agent’s request, copies of invoices, credit notes, shipping and
delivery documents.






	18.9	 	Minimum Available Cash Reporting
	 
	 	 	If at any time, the Available Cash of the US Parent falls below US$150,000,000 then the US
Parent shall promptly notify the Facility Agent in writing and, thereafter, shall deliver or
procure the delivery to the Facility Agent on a monthly basis and in any event not later
than the twentieth day following the last day of the preceding calendar month:






	 	(a)	 	a schedule certified by an Authorised Signatory of the US Parent detailing:






	 	(i)	 	the total value of Available Cash held on deposit in bank
accounts in accordance with and as required by Clause 19.14 (Minimum Available
Cash) as at the end of each calendar month and for each day of the preceding
month; and
	 
	 	(ii)	 	details of the bank at which the relevant Available Cash is
held, including account number, bank name, bank address, Available Cash
balances and the name of the account holder; and






	 	(b)	 	evidence in form and substance reasonably satisfactory to the Facility Agent
from each relevant bank verifying the Available Cash and other information provided by
the US Parent in accordance with this Clause 18.9;






	 	 	provided, however, that the US Parent shall no longer be obliged to deliver the schedule and
evidence specified in respect of a particular drop in Available Cash below US$150,000,000 in
the event that the US Parent has demonstrated to the satisfaction of the Facility Agent that
the Minimum Available Cash of the US Parent has exceeded US$150,000,000 for each of the
preceding 60 days.






	18.10	 	“Know your Customer” Checks and USA Patriot Act Notice






	 	(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 or the composition of
the shareholders 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/or obligations under this Agreement to a party that is not a Lender
prior to such assignment or transfer,






	 	 	 	obliges the Facility 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




59









 






	 	 	 	already available to it, each Obligor shall promptly upon the request of the
Facility Agent or any Lender supply, or procure the supply of, such documentation
and other evidence as is reasonably requested by the Facility 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 Facility 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 Facility Agent supply, or
procure the supply of, such documentation and other evidence as is reasonably requested
by the Facility Agent (for itself) in order for the Facility Agent to carry out and be
satisfied it has complied with all necessary “know your customer” or other similar
checks under all applicable laws pursuant to the transactions contemplated in the
Finance Documents.
	 
	 	(c)	 	Each of the Lenders hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender to identify the Borrower in
accordance with the Act.






	19.	 	AFFIRMATIVE UNDERTAKINGS




Unless otherwise agreed in writing by the Majority Lenders, as long as any Obligations or any
Commitment remain outstanding, without the written consent of the Majority Lenders, the Borrower
and each Guarantor (to the extent specified) agrees the following undertakings with each of the
Finance Parties.





	19.1	 	Preservation of Assets
	 
	 	 	The Borrower shall maintain in good working order and condition (ordinary wear and tear
excepted) all of its assets necessary or desirable for the conduct of its business from time
to time.






	19.2	 	Pari Passu Ranking
	 
	 	 	Each Obligor shall ensure that its Obligations under the Finance Documents rank and will at
all times rank at least pari passu in right of priority and payment and in point of security
(save by reason of and to the extent of the security afforded thereto by the Security
Documents) with the claims of all its other present and future unsecured and unsubordinated
creditors, other than obligations applicable generally to companies incorporated in its
Relevant Jurisdiction which have priority by operation of law (including in respect of
employees’ remuneration, Taxes and like obligations).






	19.3	 	Environmental and Health Matters
	 
	 	 	The Borrower will:






	 	(a)	 	obtain all Environmental Licences required in connection with its business and
comply with (i) the terms and conditions of those Environmental Licences and (ii) all
Environmental Laws to which it is subject in each case where failure to do so would
reasonably be expected to result in a Material Adverse Effect; and




60









 






	 	(b)	 	promptly upon receipt of the same, notify the Facility Agent of any claim,
notice or other communication served on it in respect of any alleged breach of or
corrective or remedial obligation or liability under any Environmental Law which could
reasonably be expected to result in a Material Adverse Effect.






	19.4	 	Insurance






	 	(a)	 	The Borrower will procure and maintain appropriate public liability insurance,
and product liability insurance and otherwise insure and keep insured all its property
and assets of an insurable nature and which are customarily insured (either generally
or by companies carrying on a similar business) against loss or damage by fire and
other risks normally insured against by prudent persons carrying on the same class of
business as that carried on by it in a similar location and in a sum or sums and with
deductibles and other terms consistent with prudent market practice for companies
carrying on a similar business in a similar location with insurance providers
acceptable to the Facility Agent (acting reasonably).
	 
	 	(b)	 	The Borrower will procure that the insurance provider makes an endorsement on
the policy naming the Security Agent as an additional insured in respect of such
policy.






	19.5	 	Compliance with Laws
	 
	 	 	The Borrower and the Guarantors will comply in all material respects with all applicable
laws (including Environmental Laws and Anti-Terrorism Laws), rules, directives, regulations
and orders of any governmental authority, whether domestic or foreign, having jurisdiction
over it or any of its assets if (other than a failure to comply with Anti-Terrorism Laws)
failure so to comply has or could reasonably be expected to have a Material Adverse Effect.






	19.6	 	Consents
	 
	 	 	Each Obligor will promptly obtain, renew (by making all necessary filings or otherwise) from
time to time and maintain in full force and effect, and if so requested promptly furnish
certified copies to the Facility Agent of all such material filings, authorisations,
approvals, consents, licences (including Environmental Licences) and exemptions as may be
required under any applicable law or regulation:






	 	(a)	 	to enable each Obligor to enter into and perform its respective material
obligations under the Finance Documents to which it is a party or required for the
validity or enforceability of such Finance Documents or of any security provided for
thereby; and/or
	 
	 	(b)	 	to carry on its business in the ordinary course as it is being conducted from
time to time where failure to obtain, renew or maintain any such filing, authorisation,
approval, consent, licence or exemption or non-compliance with the terms of the same
could reasonably be expected to have a Material Adverse Effect.






	19.7	 	Pension Schemes






	 	(a)	 	The US Parent shall ensure that all Pension Plans and Foreign Plans which are
funded, or required to be funded, are funded in accordance with current statutory
requirements and on the basis of reasonable actuarial assumptions and Approved
Accounting Principles and that no action or omission is taken by any member of the
Group in relation to such a pension scheme which has or would reasonably be expected to
have a Material Adverse Effect.




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	 	(b)	 	The US Parent shall ensure that no Obligor establishes any defined benefit
occupational pension scheme (other than where it is mandatory to establish a defined
benefit occupational pension scheme at law).
	 
	 	(c)	 	The US Parent shall deliver or procure delivery to the Facility Agent as soon
as reasonably practicable following the preparation of those reports as are prepared in
order to comply with the then current statutory or auditing requirements (as applicable
either to the trustees of any relevant schemes or to the US Parent), actuarial reports
in relation to all pension schemes mentioned in paragraph (a) above.
	 
	 	(d)	 	The US Parent shall ensure that Obligor, nor any ERISA Affiliate, will cause or
permit to occur (i) an event which could result in the imposition of an Encumbrance
under Section 412 of the Code or Section 302 or 4068 of ERISA or (ii) an ERISA Event
which has or would reasonably be expected to have a Material Adverse Effect.






	19.8	 	Intellectual Property
	 
	 	 	The Borrower shall take all reasonable and practical steps to preserve and enforce all of
the Intellectual Property Rights which are material to the conduct of its businesses or
which are required by it in order for it to carry on its businesses in all material
respects.






	19.9	 	Tax
	 
	 	 	Each Obligor shall comply in all material respects with all Taxation laws in all
jurisdictions in which they are respectively subject to Taxation and shall promptly pay all
Taxes shown to be due on any Tax returns required to be filed by it and them or on any
assessments made against it and them prior to penalties being incurred (other than to the
extent they are being contested in good faith by appropriate process in respect of which
adequate reserves are being maintained), and where the failure to pay such Taxes would not
reasonably be expected to have a Material Adverse Effect. Each Obligor shall pay all Taxes
with respect to the execution of any of the Finance Documents and the exercise of any rights
or remedies thereunder as contemplated therein.






	19.10	 	Security






	 	(a)	 	Without prejudice to the obligations of the Obligors under the Security
Documents, each Obligor shall take all such action (the cost of such action to be borne
by such Obligor):






	 	(i)	 	as the Facility Agent or the Security Agent may require (acting
reasonably) for the purpose of perfecting or protecting the Finance Parties’
rights under and preserving the security interests intended to be created or
evidenced by any of the Finance Documents; and
	 
	 	(ii)	 	as the Facility Agent or the Security Agent may require
following the making of any declaration pursuant to Clause 22.2 (Acceleration
and Cancellation) or 22.3 (Utilisations Due on Demand) for facilitating the
realisation of any such security or any part thereof.






	 	(b)	 	Each Obligor shall ensure that each Security Document to which it is a party
creates the security interest which that Security Document purports to create or, if
that Security Document purports to evidence a security interest, accurately evidences a
security interest which has been validly created and that each security interest ranks
in priority as specified in the Security Document creating or evidencing that interest.




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	19.11	 	Cash Management






	 	(a)	 	The Borrower shall establish with the Facility Agent, a cash management system
acceptable to the Facility Agent, including on the terms set out below.
	 
	 	(b)	 	The Borrower shall ensure that any Existing Collection Account is closed within
90 days of the date of this Agreement or as soon as practicable thereafter.
Notwithstanding the foregoing, the Borrower shall procure that each Third Party Account
Bank with whom it holds an Existing Collection Account establishes and effects an
automatic (and where this is not practically possible, a manual) cash sweeping
mechanism on each Existing Collection Account to transfer all monies standing to the
credit of such Existing Collection Account at the end of each Business Day to the
Collection Account of the Borrower or, prior to the establishment of such Collection
Accounts, such accounts as the Facility Agent shall direct. In addition, the Borrower
shall procure that no Third Party Account Bank shall make any payment from any Existing
Collection Account other than any payment to be made to a Collection Account, or, prior
to the establishment of such Collection Accounts, to such accounts as the Facility
Agent shall direct, under the automatic (or manual, as the case may be) cash sweeping
mechanism described above and other than to pay its customary banking charges in
connection with such account.
	 
	 	(c)	 	The Borrower shall, as soon as practicable, notify each of its Account Debtors
to make all future payments in respect of Receivables to the Collection Account of the
Borrower. Each invoice sent to an Account Debtor by the Borrower shall specify the
relevant Collection Account to which such Account Debtor is to make payments in respect
of Receivables and, if instructed by the Facility Agent following the occurrence of an
Event of Default which is continuing, notify the Account Debtor that the relevant
Receivable is subject to an Encumbrance. For the avoidance of doubt, following the
occurrence of an Event of Default which is continuing, the Agents (and its delegates,
agents and nominees) shall be authorised and entitled to notify directly any Account
Debtors of the existence of the Security and instruct the Account Debtors to make
payments in respect of Receivables as it shall direct. The Borrower shall procure that
any amounts received or to be received by it in respect of Receivables coming into
existence after the date of this Agreement are paid by the relevant Account Debtor
directly into the Collection Account or, prior to the establishment of such Collection
Account, to such account as the Facility Agent shall direct, such Collection Account to
be established and maintained by the Borrower with the Security Agent and subject to a
first priority Encumbrance in favour of the Security Agent governed by the law of
location of such accounts and in form and substance satisfactory to the Facility Agent
(acting reasonably) and that any other amounts received by it are swept into such
account as stated above.
	 
	 	(d)	 	The Borrower shall at all times utilise its cash balances so as to (i) reduce
amounts outstanding under the Revolving Facility or to minimise utilisation of the
Revolving Facility, (ii) service the interest and principal payable on the Revolving
Facility and (iii) pay any of its other Obligations; provided, however, that unless an
Event of Default has occurred and is continuing (or the Facility Agent shall have in
its discretion acting in good faith otherwise direct), the Borrower shall not be
obliged to use such cash balances to immediately repay outstanding Loans.






	19.12	 	Maintenance
	 
	 	 	The Borrower:




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	 	(a)	 	shall maintain management and operating procedures to enable it to comply with
the terms of this Agreement and the other Finance Documents; and
	 
	 	(b)	 	shall maintain at all times, books, records and accounts which are complete and
correct in all material respects and in relation to which timely entries are made of
their transactions in accordance with Approved Accounting Principles; and
	 
	 	(c)	 	shall by means of appropriate entries, reflect in such accounts and in all
Financial Statements proper liabilities and reserves for all Taxes and proper provision
for depreciation and amortisation of any property or asset and bad debts, all in
accordance with Approved Accounting Principles; and
	 
	 	(d)	 	shall maintain at all times books and records pertaining to any applicable
Collateral in such detail, form and scope as the Facility Agent shall reasonably
require, including without limitation records of all payments received and all credits
and extensions granted with respect to the Receivables, and all other material dealings
affecting the Collateral.






	19.13	 	Maintenance of Existence
	 
	 	 	Each Obligor will do all things necessary to maintain its corporate existence, save as
otherwise permitted by this Agreement.






	19.14	 	Minimum Available Cash
	 
	 	 	The US Parent shall at all times maintain freely available and accessible cash balances or
Cash Equivalents which are not subject to any Encumbrances (other than those arising
pursuant to the Finance Documents) (“Available Cash”) in an amount at least equal to
US$100,000,000 (“Minimum Available Cash”). For purposes of determining the US Parent’s
compliance with this Clause 19.14, the US Parent shall be entitled to include Available Cash
held by any of its Subsidiaries; provided that such Available Cash can be immediately and
irrevocably up-streamed by the relevant Subsidiary to the US Parent without breaching any
legal or regulatory restriction (including any prohibition on financial assistance, any rule
relating to corporate benefit or any other fiduciary or statutory duty) applicable to it or
otherwise having to satisfy any conditionality prior to such transfer.






	20.	 	NEGATIVE UNDERTAKINGS




Unless otherwise agreed in writing by the Majority Lenders as long as any Obligations or any
Commitments remain outstanding, the Borrower and each Guarantor (to the extent specified) agrees
to the following undertakings with each of the Finance Parties.





	20.1	 	Negative Pledge






	 	(a)	 	The Borrower and the Swiss Parent will not create or permit to subsist any
Encumbrance on the whole or any part of its respective present or future business,
assets or undertaking, except for Permitted Encumbrances.
	 
	 	(b)	 	The US Parent will not create or permit to subsist any Encumbrance on the whole
or any part of its holding of the issued share capital of the Swiss Parent other than
pursuant to the Finance Documents.






	20.2	 	Transactions Similar to Security
	 
	 	 	The Borrower and the Swiss Parent will not:




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	 	(a)	 	sell, transfer or otherwise dispose of any of its assets on terms whereby they
are or may be leased to or re-acquired by an Obligor or any member of the Group;
	 
	 	(b)	 	sell, transfer or otherwise dispose of any of its receivables;
	 
	 	(c)	 	enter into any arrangement under which money or the benefit of a bank or other
account may be applied, set-off or made subject to a combination of accounts; or
	 
	 	(d)	 	enter into any other preferential arrangement having a similar effect,
	 
	 	 	 	in circumstances where the arrangement or transaction is entered into primarily as a
method of raising Indebtedness or of financing the acquisition of an asset.






	20.3	 	Disposals
	 
	 	 	The Borrower and the Swiss Parent (and with respect to its holdings of shares, stock or
other equity interests of the Swiss Parent only, the US Parent) will not either in a single
transaction or in a series of transactions whether related or not and whether voluntarily or
involuntarily, sell, transfer, lease or otherwise dispose of all or any part of its
respective business, assets or undertaking, enter into a sale and leaseback or vendor
financing in respect of any asset or otherwise factor Receivables, other than:






	 	(a)	 	Permitted Disposals; and
	 
	 	(b)	 	Permitted Transactions.






	20.4	 	Indebtedness
	 
	 	 	The Borrower and the Swiss Parent will not incur or have outstanding any Indebtedness other
than Permitted Indebtedness.






	20.5	 	Third Party Guarantees
	 
	 	 	The Borrower and the Swiss Parent will not incur any obligations or assume any liability
under a guarantee or indemnity (or other arrangement of equivalent effect) other than a
Permitted Guarantee.






	20.6	 	Treasury Transactions
	 
	 	 	The Borrower and the Swiss Parent will not enter into any interest rate swap, cap, ceiling,
collar or floor or any currency swap, futures, foreign exchange or commodity contract or
option (whether over the counter or exchange traded) or any similar treasury transaction,
other than (i) spot foreign exchange contracts entered into in the ordinary course of
trading for non-speculative purposes, (ii) transactions for the hedging for non-speculative
purposes of actual or projected interest rate and/or currency exposures arising in the
ordinary course of the trading activities of such member of the Group, and (iii) hedging
transactions agreed from time to time by the Borrower and the Facility Agent (acting on the
instructions of the Majority Lenders).






	20.7	 	Loans
	 
	 	 	The Borrower and the Swiss Parent will not be the creditor in respect of any Indebtedness,
save for Permitted Loans.




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	20.8	 	Dividends
	 
	 	 	At any time following an Event of Default or when the Borrower would be unable to make the
representation and warranty set out in Clause 17.1(e) (Insolvency) immediately prior to (and
immediately following) the making of any payment, dividend or distribution specified below,
the Borrower will not:






	 	(a)	 	declare, make or pay any payment, dividend (or interest on any unpaid
dividend), charge, fee or other distribution (whether in cash or in kind) on or in
respect of any shares or equivalent ownership interests in its capital held by any
person; or
	 
	 	(b)	 	repay or distribute any share premium account in respect of shares or
equivalent ownership interests held by any person.






	20.9	 	Share Capital
	 
	 	 	The Borrower and the Swiss Parent will not make an Equity Issuance to any person other than
pursuant to a Permitted Transaction.






	20.10	 	Mergers, Acquisitions and Joint Ventures






	 	(a)	 	Neither the Borrower nor the Swiss Parent will enter into any merger,
amalgamation, demerger, corporate reconstruction, or consolidation (other than, in the
case of the Swiss Parent, pursuant to a Permitted Transaction).
	 
	 	(b)	 	Neither the Borrower nor the Swiss Parent will acquire or invest in any
business undertaking, shares (or equivalent ownership interests), partnership
interests, stock or securities from any person or make any investment in any person
(other than investments in Cash Equivalents, and in the case of the Swiss Parent only,
pursuant to a Permitted Transaction).
	 
	 	(c)	 	Neither the Borrower nor the Swiss Parent will enter into or permit to subsist
any Joint Venture, partnership or similar arrangement with any person (other than, in
the case of the Swiss Parent, pursuant to a Permitted Transaction).






	20.11	 	Administration and Winding-up Orders, etc
	 
	 	 	The Borrower and the Guarantors will not make or join in making any application to any court
for an administration, winding up, receivership, composition with creditors, scheme or other
similar order in any jurisdiction to be made in relation to any Obligor.






	20.12	 	Arm’s Length Terms
	 
	 	 	The Borrower and the Guarantors will not enter into any transaction, arrangement or contract
with any person save where:






	 	(a)	 	such transaction, arrangement or contract is entered into in the ordinary
course of its business on commercially reasonable terms and, except with respect to
transactions with other members of the Group, on an arm’s length basis; and
	 
	 	(b)	 	it is pursuant to any other transaction not prohibited under the terms of the
Finance Documents.




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	20.13	 	Constitutional Documents
	 
	 	 	Neither the Borrower nor the Swiss Parent will, save as required by law or with the consent
of the Facility Agent (acting on the instructions of the Majority Lenders), amend or seek or
agree to amend or replace the Memorandum or Articles of Association or other constitutional
documents or bylaws of the relevant Obligor.






	20.14	 	Change of Business
	 
	 	 	The Borrower and the Guarantors will not carry on any materially different business,
directly or indirectly other than the business conducted as at the Signing Date and business
reasonably related thereto.






	20.15	 	Anti-Terrorism Laws
	 
	 	 	No Obligor will conduct any business or engage in any transaction or dealing with any
Blocked Person, including the making or receiving any contribution of funds, goods or
services to or for the benefit of any Blocked Person; deal in, or otherwise engage in any
transaction relating to, any assets blocked pursuant to Executive Order No. 13224; or engage
in or conspire to engage in any transaction that attempts to violate, or evades or avoids
(or has the purpose of evading or avoiding) any prohibitions set forth in Executive Order
No. 13224 or the USA Patriot Act. The Obligors shall deliver to the Facility Agent and the
Lenders any certification or other evidence requested from time to time by the Facility
Agent or any Lender, in its discretion, confirming each Obligor’s compliance with this
Clause.






	21.	 	FINANCIAL COVENANTS
	 
	21.1	 	Fixed Charge Coverage Ratio
	 
	 	 	The US Parent shall not permit the Fixed Charge Coverage Ratio in respect of each Relevant
Period ending on or after the date of this Agreement to fall below 1.10:1 for such Relevant
Period.
	 
	21.2	 	Calculations






	 	(a)	 	The Fixed Charge Coverage Ratio will be tested on a quarterly basis by
reference to the Financial Statements delivered to the Facility Agent under Clause 18.1
(Financial Statements) for the relevant Financial Quarter (and to the extent necessary
for any covenant testing date falling less than three months after the Signing Date,
the Base Financial Statements) unless in any such case the audited Financial Statements
required to be delivered to the Facility Agent pursuant to Clause 18.1 (Financial
Statements) for the relevant period or any part thereof are available on the relevant
date on which any such covenant is tested, in which case such audited Financial
Statements shall be used instead.
	 
	 	(b)	 	If the audited Financial Statements are not available when a covenant is tested
it shall be tested again when such audited Financial Statements become available and
compliance with the covenants in this Clause 21 will be determined also by reference to
such audited Financial Statements.






	22.	 	EVENTS OF DEFAULT
	 
	22.1	 	Events of Default
	 
	 	 	The following shall constitute Events of Default for the purposes of this Agreement.






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	 	(a)	 	Payment Default Any Obligor fails to pay on the due date for payment
thereof any amount payable by it under any Finance Document at the place at which and
in the currency in which it is expressed to be payable, unless payment is made within
three Business Days of its due date (and, in the case of any failure to pay principal,
the Facility Agent is satisfied that such non-payment is due solely to administrative
error or technical delays).
	 
	 	(b)	 	Breach of Financial Covenants and other Obligations Any requirement of:






	 	(i)	 	Clause 20 (Negative Undertakings) or Clause 19.10 (Security) is
not satisfied or an Obligor does not comply with the provisions of Clause
18.3(f) (Notifications), Clause 19.2 (Pari Passu Ranking), Clause 19.11 (Cash
Management), Clause 19.13 (Maintenance of Existence), Clause 19.14 (Minimum
Available Cash) or Clause 21.1 (Fixed Charge Coverage Ratio); or
	 
	 	(ii)	 	Clause 18.7 (Borrowing Base Availability Determination) Clause
18.8 (Collateral Reporting) or Clause 18.9 (Minimum Available Cash Reporting)
is not satisfied or otherwise complied with.






	 	(c)	 	Breach of Financial Statement Delivery Obligations Any requirement of Clause
18.1 (Financial Statements), Clause 18.2 (Compliance) or the provisions of any of the
Security Documents is not satisfied or otherwise complied with within 5 Business Days
of the earlier of:






	 	(i)	 	the Facility Agent notifying the Borrower of that default; and
	 
	 	(ii)	 	that Obligor becoming aware of the relevant matter.






	 	(d)	 	Breach of Other Obligations Any Obligor fails to comply with any of its
obligations under any Finance Document (whether or not the relevant obligation is
enforceable against that Obligor), other than those specified in Clause 22.1(a)
(Payment Default) Clause 22.1(b) (Breach of Financial Covenants and Other Obligations)
and Clause 22.1(c) (Breach of Financial Statement Delivery Obligations) and, if that
failure is in the opinion of the Facility Agent (acting reasonably) capable of remedy,
it is not remedied within 30 days of the earlier of:






	 	(i)	 	the Facility Agent notifying the Borrower of that default; and
	 
	 	(ii)	 	that Obligor becoming aware of the relevant matter.






	 	(e)	 	Misrepresentation Any representation, warranty or material statement which is
made by any Obligor in any Finance Document or is contained in any certificate,
statement or notice provided thereunder is or proves to have been incorrect or
misleading in any material respect when made (or when deemed to be made or repeated).
	 
	 	(f)	 	Cross Default Any Indebtedness of any member of the Group exceeding
US$35,000,000 (or its Dollar Equivalent) in aggregate is capable of being accelerated
or otherwise declared by or on behalf of a creditor, due and payable before its normal
maturity by reason of an event of default (however described).
	 
	 	(g)	 	Cross Acceleration Any Indebtedness of any member of the Group exceeding
US$20,000,000 (or its Dollar Equivalent) in aggregate:




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	 	(i)	 	is not paid when due or within any originally applicable grace
period in any agreement relating to that Indebtedness; or
	 
	 	(ii)	 	becomes due and payable before its normal maturity; or
	 
	 	(iii)	 	is placed on demand (or any commitments for any such
Indebtedness are cancelled or suspended by the relevant lender,






in each case by reason of an event of default (howsoever described).




	 	(h)	 	Invalidity and Unlawfulness






	 	(i)	 	Any material provision of any Finance Document is or becomes
invalid or unenforceable for any reason or is repudiated or the validity or
enforceability of any material provision of any Finance Document is contested
by any Obligor or any Obligor denies the existence of any liability or
obligation on its part under any Finance Document.
	 
	 	(ii)	 	It is or becomes unlawful under any applicable jurisdiction for
any Obligor to perform any of its material obligations under any Finance
Document.
	 
	 	(iii)	 	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 if 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 reasonably considered by the Majority Lenders to be materially adverse
to the interests of the Lenders under the Finance Documents.






	 	(i)	 	Insolvency






	 	(i)	 	Any Obligor stops or suspends or threatens, or announces an
intention to stop or suspend, payment of its debts.
	 
	 	(ii)	 	Any Obligor is, under any applicable law of any jurisdiction,
deemed to be insolvent or unable, or admits its inability, to pay its debts as
they fall due or becomes insolvent or a moratorium is declared in relation to
any Indebtedness of any such Obligor.






	 	(j)	 	Receivership and Administration






	 	(i)	 	Any encumbrancer takes possession of, or a receiver,
administrative receiver or administrator or similar officer is appointed in any
jurisdiction over or in relation to, all or any material part of the assets of
any Obligor.
	 
	 	(ii)	 	A meeting is convened or an application or petition is made or
filed for the purpose of appointing a receiver, administrative receiver or
other similar officer of or in relation to any Obligor.
	 
	 	(iii)	 	An application is made or any other such document is issued, a
meeting is convened, or any other step is taken, or any notice is given of the
intention to convene a meeting or take any other step, for the purpose of
appointing an administrator or other similar officer of, or for the making of
an administration order in relation to any Obligor.




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	 	(k)	 	Compositions and Arrangements






	 	(i)	 	Any Obligor convenes a meeting of its creditors generally or
takes any step with a view to a moratorium or proposes or makes any arrangement
or composition or compromise with, or any assignment for the benefit of, its
creditors generally.






	 	(ii)	 	Any Obligor proposes or enters into any negotiations for or in
connection with the rescheduling, restructuring or re-adjustment of any
Indebtedness by reason of, or with a view to avoiding, financial difficulties.






	 	(l)	 	Winding up






	 	(i)	 	(Other than in connection with a solvent reorganisation, the
terms of which have been approved by the Majority Lenders) any meeting of any
Obligor is convened for the purpose of considering any resolution in respect of
(or to petition for) its winding up.
	 
	 	(ii)	 	A petition or any other such document is presented or an
application is made for the winding up of any Obligor or an order is made for
the winding up of any Obligor (other than a frivolous or vexatious petition, or
any other such document, dismissed, withdrawn or discharged within 30 days of
being presented or any other petition which is contested on bona fide grounds
and dismissed, withdrawn or discharged prior to the winding-up order being
made).






	 	(m)	 	Suspension of Payments Any order is made, any resolution is passed or any
other action is taken for the suspension of payments, protection from creditors or
bankruptcy of any Obligor.
	 
	 	(n)	 	Similar Events Elsewhere There occurs in relation to any Obligor or any of its
assets in any country or territory in which it is incorporated or carries on business
or to the jurisdiction of whose courts it or any of its assets is subject any event
which corresponds in that country or territory with any of those mentioned in
paragraphs (i) (Insolvency) to (m) (Suspension of Payments) (inclusive) and (o) (US
Bankruptcy Laws) of this Clause 22.1.
	 
	 	(o)	 	US Bankruptcy Laws Any of the following occurs in respect of any US Group
Company which is an Obligor:






	 	(i)	 	it makes a general assignment for the benefit of creditors;
	 
	 	(ii)	 	it commences a voluntary case or proceeding under any US
Bankruptcy Law;
	 
	 	(iii)	 	an involuntary case under any US Bankruptcy Law is commenced
against any such US Group Company and is not controverted within 60 days or is
not dismissed or stayed within 90 days after commencement of the case or an
order for relief is entered against it;
	 
	 	(iv)	 	it (A) files a voluntary petition in bankruptcy or files a
voluntary petition or an answer or otherwise commences any action or proceeding
seeking reorganisation, arrangement or readjustment of its debts of for any
other relief under any US Bankruptcy Law, now or hereafter existing, or
consents to, approves of, or acquiesces in, any such petition, action or
proceeding; or (B) applies for or acquiesces in the appointment of a receiver,
assignee,




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	 	 	 	liquidator, sequestrator, custodian, monitor, trustee or similar officer for
it of for all or any part of its property; or (C) makes an assignment for
the benefit of creditors; or (D) is unable generally to pay its debts as
they become due;
	 
	 	(v)	 	an involuntary petition shall be filed or an action or
proceeding otherwise commenced seeking reorganisation, arrangement,
consolidation or readjustment of its debts or for any other relief under any US
Bankruptcy Law, now or hereafter existing and such petition or proceeding shall
not be dismissed within sixty (60) days after the filing or commencement
thereof or an order of relief shall be entered with respect thereto; or
	 
	 	(vi)	 	a receiver, assignee, liquidator, sequestrator, custodian,
monitor, trustee or similar officer for it or for all or any part of its
property shall be appointed or a warrant of attachment, execution or similar
process shall be issued against any part of its property.






	 	(p)	 	Cessation of Business Any Obligor suspends, ceases, or threatens or proposes
to suspend or cease, to carry on all or a substantial part of its business.
	 
	 	(q)	 	Compulsory Acquisition All or any material part of the assets of any Obligor
are seized, nationalised, expropriated or compulsorily acquired by, or by the order of,
any Governmental Authority in relation to which full market value compensation is not
paid and as a result the business of any such member of the Group is materially and
adversely affected or curtailed.
	 
	 	(r)	 	Auditors’ Qualification The audited annual Financial Statements are subject to
any “going concern” or like qualification or any material qualification as to the scope
of such audit, compliance with the Approved Accounting Principles or with respect to
the absence of any material misstatement.
	 
	 	(s)	 	Change of Control A Change of Control occurs.






	22.2	 	Acceleration and Cancellation






Upon the occurrence of an Event of Default which is continuing, the Facility Agent may (and,
if so instructed by the Majority Lenders, shall) by written notice to the Borrower:




	 	(a)	 	declare the outstanding Utilisations to be immediately due and payable
(whereupon the same shall become so payable together with accrued interest thereon and
any other sums then owed by the Borrower hereunder) or declare the outstanding
Utilisations to be due and payable on demand (whereupon the same shall become payable
on demand of the Facility Agent on the instructions of the Majority Lenders); and/or
	 
	 	(b)	 	declare that any undrawn portion of the Revolving Facility shall be cancelled,
whereupon the same shall be cancelled and the Commitments of each Lender shall be
reduced to zero; and/or
	 
	 	(c)	 	declare the outstanding Obligations to be immediately due and payable directly
from any or all of the Guarantors pursuant to Clause 15 (Guarantee);
	 
	 	(d)	 	declare that the Security Documents (or any of them) have become enforceable
(in whole or in part); and/or




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	 	(e)	 	declare that any relevant Hedging Agreement between any member of the Group and
a Hedging Bank shall forthwith be terminated and such member of the Group and such
Hedging Bank shall from such time treat such relevant Hedging Agreement as terminated
by reason of cross-default.






	22.3	 	Utilisations Due on Demand






If, pursuant to Clause 22.2 (Acceleration and Cancellation), the Facility Agent declares the
Utilisations to be due and payable on demand of the Facility Agent, then, and at any time
thereafter, the Facility Agent may (and, if so instructed by the Majority Lenders, shall) by
written notice to the Borrower:




	 	(a)	 	require repayment of the outstanding Utilisations on such date as it may
specify in such notice (whereupon the same shall become due and payable on such date
together with accrued interest thereon and any other sums then owed by the Borrower
hereunder) or withdraw its declaration with effect from such date as it may specify in
such notice; and/or
	 
	 	(b)	 	select as the duration of any Interest Period, which begins whilst such
declaration remains in effect, a period of three months or less.






	23.	 	ROLE OF THE AGENTS AND THE ARRANGER
	 
	23.1	 	Appointment of the Agents






	 	(a)	 	Each other Finance Party appoints the Facility Agent to act as its agent under
and in connection with the Finance Documents.






	 	(b)	 	Each other Finance Party authorises the Facility 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.






	 	(c)	 	Each other Finance Party authorises the Security Agent to execute the Security
Trust and Agency Deed on its behalf.






	 	(d)	 	Each other Finance Party confirms that the Facility Agent has authority to
accept on its behalf the terms of any reliance letter or engagement letter relating to
any reports or letters provided by accountants and other advisers in connection with
the Finance Documents or the transactions contemplated therein (including any net asset
letter in connection with financial assistance procedures) and to bind it in respect of
such reports or letters and to sign such letters on its behalf and further confirms
that it accepts the terms and qualifications set out in such letters.






	23.2	 	Duties of the Agents






	 	(a)	 	The relevant Agent shall promptly forward to a party the original or a copy of
any document which is delivered to such Agent for such party by any other party.






	 	(b)	 	Except where a Finance Document specifically provides otherwise, no Agent is
obliged to review or check the adequacy, accuracy or completeness of any document it
forwards to another party.




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	 	(c)	 	If any 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)	 	The Facility Agent shall (following it being notified) promptly notify the
Lenders of any Event of Default arising under Clause 22.1 (Events of Default).






	 	(e)	 	The Agents’ duties under the Finance Documents are solely mechanical and
administrative in nature and the Agents shall have only those respective obligations,
duties and responsibilities expressly set out in the Finance Documents.






	 	(f)	 	The Security Agent shall promptly notify the Facility Agent of any notice it
receives in respect of any Security Documents.






	23.3	 	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.




	23.4	 	No Fiduciary Duties






	 	(a)	 	Nothing in this Agreement constitutes any Agent or the Arranger as a trustee or
fiduciary of any other person other than as specifically contemplated by the Finance
Documents.






	 	(b)	 	Neither Agent 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.






	23.5	 	Business with the Group






The Agents 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.




	23.6	 	Rights and Discretions of the Agents






	 	(a)	 	Each 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)	 	Each Agent may assume (unless it has received actual notice to the contrary in
its capacity as agent for the Lenders) that:






	 	(i)	 	no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 22.1 (Events of Default)); and
	 
	 	(ii)	 	any right, power, authority or discretion vested in any party
or in the Majority Lenders has not been exercised.






	 	(c)	 	Each Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors, agents or other experts.




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	 	(d)	 	Each Agent may act in relation to the Finance Documents through its personnel,
appointees, delegates and agents on the basis that each Agent may extend the benefits
of any indemnity received by it hereunder to its personnel, appointees, delegates and
agents.
	 
	 	(e)	 	Subject to the confidentiality provisions set out in Clause 35
(Confidentiality), each 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, no
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.






	23.7	 	Majority Lenders’ Instructions






	 	(a)	 	Unless a contrary indication appears in a Finance Document, each Agent shall:






	 	(i)	 	act in accordance with any instructions given to it by the
Majority Lenders or, if so instructed by the Majority Lenders, refrain from
acting or exercising any right, power, authority or discretion vested in it;
and
	 
	 	(ii)	 	not be liable for any act or omission if it acts or refrains
from acting in accordance with such an instruction of the Majority Lenders.






	 	(b)	 	Unless a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders shall be binding on the Agents and all of the Finance
Parties.
	 
	 	(c)	 	Each Agent may refrain from acting in accordance with the instructions of the
Majority Lenders (or, if appropriate or required, all the Lenders) or refrain from
taking any step (or further step) to protect or enforce the rights of any Finance Party
under the Finance Documents 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 or
required, all the Lenders) each Agent may act or refrain from taking action as it
considers to be in the best interest of the Lenders.
	 
	 	(e)	 	Neither Agent is authorised to act on behalf of a Lender in any legal or
arbitration proceedings relating to any Finance Document without first obtaining such
Lender’s consent.






	23.8	 	Responsibility for Documentation






No Agent or the Arranger nor any of their respective personnel or agents with respect to any
other Finance Party:




	 	(a)	 	shall be responsible for the adequacy, accuracy or completeness of any
representation, warranty, statement or information in the Finance Documents or any
notice or other document delivered or information provided under the Finance Documents;
	 
	 	(b)	 	shall be responsible for the execution, delivery, validity, legality, adequacy,
enforceability or admissibility in evidence of any of the Finance Documents;




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	 	(c)	 	shall be obliged to enquire as to the occurrence or continuation of a Default
or as to the accuracy or completeness of any representation or warranty made by any
person;
	 
	 	(d)	 	shall be responsible for any failure of any Obligor or any other Finance Party
duly and punctually to observe and perform their respective obligations under the
Finance Documents;
	 
	 	(e)	 	shall be responsible for the consequences of relying on the advice of any
professional advisers selected by any of them in connection with the Finance Documents;
or
	 
	 	(f)	 	shall be liable for acting (or refraining from acting) in what it believes in
good faith to be in the best interests of the Finance Parties or any of them in
circumstances where it has been unable, or it is not practicable, to obtain
instructions in accordance with this Agreement.






	23.9	 	Exclusion of Liability






	 	(a)	 	Without limiting paragraph (b) of this Clause 23.9, neither Agent shall be
liable for anything done or not done by it or either of them under or in connection
with any Finance Document, unless directly caused by its gross negligence or wilful
misconduct.
	 
	 	(b)	 	No party may take any proceedings against any officer, employee or agent of
either Agent in respect of any claim it might have against such Agent or in respect of
any act or omission of any kind by such officer, employee or agent in relation to any
Finance Document. Any officer, employee or agent of either Agent may rely on this
paragraph.
	 
	 	(c)	 	Neither Agent shall be liable for any delay (or any related consequence of any
delay) in crediting an account with an amount required under any Finance Document to be
paid by such Agent 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 the Facility Agent for that purpose.
	 
	 	(d)	 	Nothing in this Agreement shall oblige the Facility 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 Facility 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 Facility Agent or the
Arranger.






	23.10	 	Lenders’ Indemnity






Each Lender shall (in proportion to its share of the Total Commitments at the relevant time
or, if the Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify each Agent, within three Business
Days after demand, against any and all costs, losses or liabilities or expenses incurred by
such Agent (otherwise than by reason of such Agent’s gross negligence or wilful misconduct)
in performing its respective duties, obligations and responsibilities under the Finance
Documents and acting as an Agent under the Finance Documents (unless such Agent has been
reimbursed by an Obligor pursuant to any other provisions hereof or any other Finance
Document).



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	23.11	 	Agents as Finance Parties






Each Agent shall have the same rights and powers with respect to its participation in the
Finance Documents as any other Finance Party and may exercise those rights and powers as if
it were not also acting as an Agent.




	23.12	 	Resignation of the Agents






	 	(a)	 	At any time, either Agent may resign by giving notice to the Lenders and the
Borrower or, after consultation with the Borrower, the Majority Lenders may, by notice
to either Agent (copied to the Borrower), require such Agent to resign. In such case,
the Majority Lenders (after consultation with the Borrower) may appoint a successor
Agent. If the Majority Lenders have not appointed a successor Agent within 30 days
after notice of resignation was given, the retiring Agent (after consultation with the
Borrower) may appoint a successor.
	 
	 	(b)	 	Notwithstanding paragraph (a) of this Clause 23.12, either Agent may, at any
time, resign and appoint one of its Affiliates acting through an office in the United
Kingdom as successor by giving notice to the Lenders and the Borrower.
	 
	 	(c)	 	The retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the successor Agent may
reasonably request for the purposes of performing its functions as Agent under the
Finance Documents.
	 
	 	(d)	 	The retiring Agent’s resignation notice shall only take effect upon the
appointment of a successor.
	 
	 	(e)	 	Upon the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this Clause 23. Its successor and each of the other parties
shall have the same rights and obligations among themselves as they would have had if
such successor had been an original party to this Agreement.






	23.13	 	Confidentiality






	 	(a)	 	In acting as agent for the Finance Parties, each Agent shall be regarded as
acting through its agency or, as appropriate, trustee division, which shall be treated
as a separate entity from any of its other divisions or departments.
	 
	 	(b)	 	If information is received by any other division or department of either Agent,
it may be treated as confidential to such other division or department and such Agent
shall not be deemed to have notice of it.
	 
	 	(c)	 	Notwithstanding any other provision of any Finance Document to the contrary but
subject to Clause 35 (Confidentiality), neither of the Agents nor the Arranger are
obliged to disclose to any other person:






	 	(i)	 	any confidential information; or
	 
	 	(ii)	 	any other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach of a fiduciary
duty.




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	23.14	 	Relationship with the Lenders






	 	(a)	 	An 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 such Lender to the contrary in accordance with the
terms of this Agreement.
	 
	 	(b)	 	Each Lender shall supply the Facility Agent with any information required by
the Facility Agent in order to calculate the Additional Costs Rate.






	23.15	 	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 Facility 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:




	 	(a)	 	the financial condition, status and nature of each of the Obligors;
	 
	 	(b)	 	the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, 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 person 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, arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document; and
	 
	 	(d)	 	the adequacy, accuracy and/or completeness of the Information and any other
information provided by any Agent or by any other person under or in connection with
any Finance Document, the transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or executed in anticipation
of, under or in connection with any Finance Document.






	23.16	 	Deduction from Amounts Payable by the Agents






If any party owes an amount to an Agent under the Finance Documents the relevant Agent may,
after giving notice to that party, deduct an amount not exceeding that amount from any
payment to that party which the Agent 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.




	23.17	 	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




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	 	(c)	 	oblige any Finance Party to disclose any information relating to its affairs
(Tax or otherwise) or any computations in respect of Tax.






	24.	 	SHARING AMONG THE LENDERS
	 
	24.1	 	Payments to Lenders






	 	(a)	 	If any Lender receives or recovers any amount from an Obligor (including by way
of payment, set-off or any other manner of discharge) other than in accordance with
Clause 28 (Payments) and applies that amount to a payment due under any Finance
Document then:






	 	(i)	 	such Lender shall, within three Business Days of such receipt
or recovery, notify the Facility Agent of the details of such receipt or
recovery;
	 
	 	(ii)	 	the Facility Agent shall determine whether such receipt or
recovery is in excess of the amount that such Lender would have been paid had
such receipt or recovery been received or made by the Facility Agent and
distributed in accordance with Clause 28 (Payments), without taking account of
any Tax which would be imposed on the Facility Agent in relation to such
receipt, recovery or distribution; and
	 
	 	(iii)	 	such Lender shall, within three Business Days of demand by the
Facility Agent, pay to the Facility Agent an amount equal to such receipt or
recovery less any amount which the Facility Agent determines, in accordance
with Clause 28.5 (Partial Payments), may be retained by such Lender as its
share of any payment to be made.






	 	(b)	 	Paragraph (a) of this Clause 24.1 shall not apply to the extent that the
relevant Lender would not, after making any payment pursuant to such paragraph, have a
valid and enforceable claim against the relevant Obligor.






	 	(c)	 	A Lender shall not be obliged to share with any other Lender any amount which
such Lender has received or recovered as a result of taking legal or arbitration
proceedings if:






	 	(i)	 	it has promptly notified the other Lenders of the commencement
of such legal or arbitration proceedings; and
	 
	 	(ii)	 	such other Lender had an opportunity to participate in such
legal or arbitration proceedings or separate legal or arbitration proceedings
but did not do so as soon as reasonably practicable after having received such
notice.






	24.2	 	Redistribution of Payments






	 	(a)	 	The Facility Agent shall treat any payment made by a Lender pursuant to Clause
24.1 (Payments to Lenders) as if it had been paid by the relevant Obligor and
distribute it among the Finance Parties (other than the Lender making such payment) in
accordance with Clause 28.5 (Partial Payments).
	 
	 	(b)	 	Upon any such distribution by the Facility Agent, such Lender shall be
subrogated to the rights of the Finance Parties which have shared in such
redistribution. If and to the extent that such Lender is not able to rely on such
subrogation rights, the relevant Obligor shall be liable to such Lender for a debt
equal to the payment made by such




78









 












Lender pursuant to Clause 24.1 (Payments to Lenders) and such debt shall be
immediately due and payable.




	24.3	 	Reversal of Redistribution






If any part of any payment made by a Lender pursuant to Clause 24.1 (Payments to Lenders)
becomes repayable and is repaid by such Lender, then:




	 	(a)	 	each Lender which has received a share of such payment pursuant to Clause 24.2
(Redistribution of Payments) shall, upon request of the Facility Agent, pay to the
Facility Agent for account of the Lender that made such payment an amount equal to its
share of such payment (together with such amount as is necessary to reimburse the
Lender that made such payment for its proportion of any interest on such payment which
such Lender is required to pay); and
	 
	 	(b)	 	the rights of subrogation of the Lender that made such payment in respect of
any reimbursement shall be cancelled and the relevant Obligor shall be liable to the
reimbursing Lender for the amount so reimbursed.






	25.	 	HEDGING BANKS






Each Hedging Bank agrees with the Lenders (but not with the Borrower or any other member of
the Group) that it will not terminate any Hedging Agreement to which it is a party (each
such Hedging Agreement being a “relevant Hedging Agreement”) except:




	 	(a)	 	as a result of the non-payment by the relevant member of the Group of any
Indebtedness under any relevant Hedging Agreement that has fallen due for payment in
the currency and manner stipulated in the relevant Hedging Agreement before the expiry
of any applicable cure period (or, if no cure period is prescribed in the relevant
Hedging Agreement, three Business Days);
	 
	 	(b)	 	as a result of the repudiation of any relevant Hedging Agreement by the
relevant member of the Group;
	 
	 	(c)	 	upon the issue by the Facility Agent of a notice under paragraphs (a) or (d)
under Clause 22.2 (Acceleration and Cancellation);
	 
	 	(d)	 	upon:






	 	(i)	 	it becoming contrary to any law or regulation for the relevant
member of the Group or such Hedging Bank to perform the payment obligations
expressed to be assumed by it in respect of any relevant Hedging Agreement or
such obligations become invalid or unenforceable against the relevant member of
the Group; or
	 
	 	(ii)	 	any provision of any Hedging Agreement to which such Hedging
Bank is a party relating to the termination thereof (including the calculation
of or obligation to pay amounts upon such termination) becoming invalid or
unenforceable against the relevant member of the Group;






	 	(e)	 	upon any exchange control, foreign currency or other consent, authorisation,
licence, approval of, or registration with or declaration to, governmental or public
bodies or authorities or courts required by the relevant member of the Group to
authorise, or required by the relevant member of the Group in connection with, the
execution, delivery, validity, enforceability or admissibility in evidence of any
Hedging




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	 	 	 	Agreement or the performance of its payment obligations thereunder being modified in
a manner unacceptable to such Hedging Bank or not being granted or being revoked or
terminated or expiring and not being renewed or otherwise ceasing to be in full
force and effect;
	 
	 	(f)	 	upon the making or any order for the winding-up of, or the administration of,
or the appointment of a receiver in respect of any part of the assets and/or
undertaking of, or the dissolution of, the relevant member of the Group party to the
relevant Hedging Agreement (or any analogous provision in any other jurisdiction); or
	 
	 	(g)	 	with the prior written consent of the Facility Agent (acting on the
instructions of the Majority Lenders).






	26.	 	CHANGES TO THE LENDERS
	 
	26.1	 	Binding Agreement






This Agreement shall be binding upon and enure to the benefit of each party hereto and its
or any subsequent successors, Transferees and assigns.




	26.2	 	Assignments and Transfers by Lenders






Any Lender may, at any time, assign all or any of its rights and benefits hereunder or
transfer in accordance with Clause 26.4 (Transfers by Lenders) without the consent of an
Obligor all or any of its rights, benefits and obligations hereunder 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; provided that no such assignment or transfer may be made without
consultation with the Borrower, except in the case of any such assignment or transfer:




	 	(a)	 	to any Subsidiary or Holding Company, or to any Subsidiary of any Holding
Company, of such Lender; or






	 	(b)	 	to any other Lender or any Subsidiary or Holding Company, or to any Subsidiary
of any Holding Company, of any other Lender; or






	 	(c)	 	when a Default has occurred which is continuing,






provided, further, that written notification of any such assignment or transfer shall be
delivered to the Borrower by the acceding Lender as soon as reasonably practicable following
consummation of such assignment or transfer.




	26.3	 	Conditions of Assignment or Transfer






	 	(a)	 	A Lender may assign or transfer the whole or any part of its rights and
obligations but, if in part, by a minimum amount of US$5,000,000 (such minimum amount
not to apply to transfers to another Lender or an Affiliate thereof or transfers
following the occurrence of a Default which is continuing).






	 	(b)	 	An assignment by a Transferor of all or any of its rights and benefits
hereunder in accordance with Clause 26.2 (Assignments and Transfers by Lenders) will
only be effective on:






	 	(i)	 	receipt by the Facility Agent of written confirmation from the
Transferee (in form and substance satisfactory to the Facility Agent) that the
Transferee will




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	 	 	 	assume the same obligations towards each of the other Finance Parties as it
would have been under if it had been an original party hereto as a Lender;
	 
	 	(ii)	 	performance by the Facility Agent of all “know your customer”
or other checks relating to any person that it is required to carry out in
relation to such assignment to the Transferee, including compliance by any
Obligor of its obligations under Clause 18.10 (“Know your customer” checks),
the completion of which the Facility Agent shall promptly notify to the
Transferor and the Transferee; and
	 
	 	(iii)	 	performance by the Transferee and any other Finance Party (to
the satisfaction of the Facility Agent) of such action as the Facility Agent or
the Security Agent may require (acting reasonably) for the purpose of
perfecting or protecting the Finance Parties’ rights under and preserving the
security interests intended to be created or evidenced by any of the Finance
Documents.






	 	(c)	 	Unless a Default has occurred which is continuing, if:






	 	(i)	 	a Lender assigns or transfers any of its rights or obligations
under the Finance Documents; 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 Transferee under Clause 13 (Taxes) or Clause 12 (Changes in
Circumstances),






then the Transferee is only entitled to receive payment under those Clauses to the
same extent as the Transferor would have been if the assignment, transfer or change
had not occurred.




	26.4	 	Transfers by Lenders






If a Transferor wishes to transfer all or any of its rights, benefits and/or obligations
hereunder as contemplated in Clause 26.2 (Assignments and Transfers by Lenders), then such
transfer may be effected by the delivery to the Facility Agent of a duly completed and duly
executed Transfer Certificate in which event (subject to paragraph (b) of Clause 26.3
(Conditions of Assignment or Transfer)), on the later of the Transfer Date specified in such
Transfer Certificate and the fifth Business Day after (or such earlier Business Day endorsed
by the Facility Agent on such Transfer Certificate falling on or after) the date of delivery
of such Transfer Certificate to the Facility Agent:




	 	(a)	 	to the extent that in such Transfer Certificate the Transferor seeks to
transfer its rights, benefits and obligations hereunder, each of the Obligors and such
Transferor shall be released from further obligations towards one another hereunder and
their respective rights against one another shall be cancelled (such rights and
obligations being referred to in this Clause 26.4 as “discharged rights and
obligations”);






	 	(b)	 	each of the Obligors and the Transferee shall assume obligations towards one
another and/or acquire rights against one another which differ from such discharged
rights and obligations only insofar as such Obligor and such Transferee have assumed
and/or acquired the same in place of such Obligor and such Transferor;






	 	(c)	 	the Facility Agent, such Transferee and all other Finance Parties shall acquire
the same rights and benefits and assume the same obligations between themselves as they




81









 






	 	 	 	would have acquired and assumed had such Transferee been an original party hereto as
a Lender with the rights, benefits and/or obligations acquired or assumed by it as a
result of such transfer; and
	 
	 	(d)	 	such Transferee shall become a party hereto as a Lender.






	26.5	 	Copy of Transfer Certificate to Borrower






On, or as soon as reasonably practicable after, the date upon which a transfer takes effect
pursuant to Clause 26.4 (Transfers by Lenders) the Facility Agent shall send to the Borrower
a copy of the relevant Transfer Certificate.




	26.6	 	Transfer Fees






On the date upon which a transfer takes effect pursuant to Clause 26.4 (Transfers by
Lenders) the Transferee in respect of such transfer shall pay to the Facility Agent for its
own account a transfer fee of US$3,500.




	26.7	 	Disclosure of Information






Subject to Clause 35 (Confidentiality), any Lender may disclose to any actual or potential
assignee or Transferee or to any person who may otherwise enter into contractual relations
with such Lender in relation to this Agreement (but not otherwise) such information about
the Obligors and the Group as such Lender shall consider appropriate.




	26.8	 	Hedging Banks






	 	(a)	 	A Lender (or an Affiliate of a Lender) which becomes a Hedging Bank shall
accede to this Agreement and to the Security Trust and Agency Deed by delivery to the
Security Agent of a duly completed and signed accession deed in the form required under
the Security Trust and Agency Deed and by the Security Agent executing that accession
deed.
	 
	 	(b)	 	Where this Agreement or any other Finance Document imposes an obligation on a
Hedging Bank and the relevant Hedging Bank is an Affiliate of a Lender and is not party
to that document, the relevant Lender shall ensure that the obligation is performed by
its Affiliate.






	26.9	 	Lender as a Hedging Bank






If any Lender assigns or otherwise transfers all or any part of its rights or obligations
under this Agreement as provided in Clause 26.4 (Transfers by Lenders) and such Lender is a
Hedging Bank at the time of such assignment or transfer, it shall, notwithstanding such
assignment or transfer, remain a Hedging Bank in respect of the Hedging Agreements which it
entered into while it was a Lender and shall remain a party to this Agreement in such
capacity.




	26.10	 	Costs resulting from change of Lender





     If a Lender assigns or transfers any of its rights and obligations under the Finance
Documents and as a result of circumstances existing at the date of assignment or transfer,
an Obligor would be obliged to make a payment to the new Lender under Clause 13.1 (Taxes),
then the new Lender is only entitled to receive payment in respect of such clause to the
same extent as the assignor Lender would have been if the assignment or transfer had not
occurred.



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	27.	 	ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS






Except in connection with a Permitted Transaction no Obligor shall be entitled to assign or
transfer all or any of its rights, benefits and obligations hereunder without the prior
written consent of the Facility Agent (acting on the instructions of all Lenders).




	28.	 	PAYMENTS
	 
	28.1	 	Payments to the Facility Agent






	 	(a)	 	On each date on which an Obligor or a Lender is required to make a payment
under a Finance Document, that Obligor or Lender shall make the same available to the
Facility Agent for value on the due date at the time and in such funds specified by the
Facility 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 with such bank as the Facility Agent
specifies.






	28.2	 	Distributions by the Facility Agent






Each payment received by the Facility Agent under the Finance Documents for another person
shall, subject to Clause 28.3 (Distributions to an Obligor) and Clause 30.4 (Clawback), be
made available by the Facility Agent as soon as practicable after receipt to the person
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 person may notify to the
Facility Agent by not less than five Business Days notice with a bank in London.




	28.3	 	Distributions to an Obligor






The Facility Agent may (with the consent of the Obligor or in accordance with Clause 29
(Set-Off)) apply any amount received by it from 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 the event that such receipts are not in US Dollars, in or towards
purchase of US Dollars to be so applied.




	28.4	 	Clawback






	 	(a)	 	Where a sum is to be paid to the Facility Agent under the Finance Documents for
another person, the Facility Agent is not obliged to pay that sum to that other person
(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 Facility Agent pays an amount to another person and it proves to be the
case that the Facility Agent had not actually received that amount, then the person to
whom that amount (or the proceeds of any related exchange contract) was paid by the
Facility Agent shall on demand refund the same to the Facility Agent together with
interest on that amount from the date of payment to the date of receipt by the Facility
Agent, calculated by the Facility Agent to reflect its cost of funds.






	28.5	 	Partial Payments






	 	(a)	 	If the Facility Agent receives a payment or the Security Agent or any receiver
receives an amount by virtue of any enforcement action taken pursuant to any of the
Security Documents or any other Finance Document and, in either case, the amount




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	 	 	 	received is insufficient to discharge all the amounts then due and payable by an
Obligor under the Finance Documents, the Facility 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 any Agent under the Finance Documents (including in an
enforcement scenario, all fees, costs, charges and liabilities reasonably
incurred by or on behalf of the Security Agent and any receiver, attorney or
agent);
	 
	 	(ii)	 	second, in or towards payment on a pro rata basis of any
accrued interest or commission due but unpaid under this Agreement;
	 
	 	(iii)	 	third, in or towards payment on a pro rata basis of any
principal due but unpaid under this Agreement;
	 
	 	(iv)	 	fourth, in or towards payment of any amounts due but unpaid in
respect of the Hedging Agreements; and
	 
	 	(v)	 	fifth, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.






	 	(b)	 	The Facility Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (a)(v) of this Clause 28.5.
	 
	 	(c)	 	Paragraphs (a) and (b) of this Clause 28.5 shall override any appropriation
made by an Obligor.
	 
	 	(d)	 	For the avoidance of doubt, the Security Agent shall hold the benefit of the
Security in the same order of priority specified in paragraph (a) above.






	28.6	 	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.




	28.7	 	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 an Overdue
Amount under this Agreement interest is payable on the principal at the rate payable on
the original due date.






	28.8	 	Currency of Account






	 	(a)	 	Subject to paragraphs (b) to (e) (inclusive) of this Clause 28.8, 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 an Utilisation or Overdue Amount or a part of a Utilisation or
Overdue Amount shall be made in the currency in which that Utilisation or Overdue
Amount is denominated on its due date.




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	 	(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.
	 
	 	(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 Dollars shall be
paid in that other currency.






	28.9	 	Change of Currency






If a change in any currency of a country occurs, this Agreement shall, to the extent that
the Facility Agent (acting reasonably and after consultation with the Borrower) deems
necessary, be amended to comply with any generally accepted conventions and market practices
in the London interbank market and otherwise to reflect the change in currency.




	29.	 	SET-OFF




Following the occurrence of an Event of Default that is continuing, a Finance Party may (but, for
the avoidance of doubt, is not obliged to) 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. The rights specified above are in addition to and not in
substitution for rights arising by operation of law.





	30.	 	COSTS AND EXPENSES
	 
	30.1	 	Transaction Expenses






The Borrower shall, from time to time within 45 days of written demand, reimburse each of
the Facility Agent, the Security Agent, the Lenders and the Arranger for all reasonable
costs and expenses (including the fees, costs and expenses of their legal and other advisers
and field examiners) together with any VAT thereon incurred by it in connection with the
negotiation, preparation, execution, syndication and perfection of this Agreement and any
other Finance Document (whether referred to in this Agreement or executed after the date of
this Agreement) and the completion of the transactions contemplated herein or therein;
provided that the fees, costs and expenses of the Finance Parties’ legal advisers so
incurred to the Signing Date shall be paid out of the first Utilisation of the Facility
conditional upon delivery of a written invoice detailing the amounts incurred.




	30.2	 	Preservation and Enforcement of Rights






The Borrower shall, from time to time on demand, reimburse the Facility Agent, the Security
Agent and each of the other Finance Parties for all costs and expenses (including legal
fees) together with any VAT thereon incurred in or in connection with the preservation
and/or enforcement of any of their rights under this Agreement or any other Finance
Document.




	30.3	 	Agent’s Costs






The Facility Agent and the Security Agent shall be entitled to compensation (based on an
hourly or daily rate for each of its employees or agents as the Facility Agent may from time
to time determine) for time spent directly or indirectly (a) in connection with the
enforcement of Security and exercise of other remedies by way of enforcement following an
Event of Default



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and/or (b) in connection with the collection or management of Receivables at any time
permitted under the Finance Documents. In addition, the Borrower shall, from time to time
on demand of the Facility Agent and without prejudice to the provisions of Clause 30.2
(Preservation and Enforcement of Rights) and Clause 30.4 (Amendment Costs) compensate the
Facility Agent for all reasonable costs and expenses (including travel, lodging and meal
costs) and field exam costs and audit at the Security Agent’s Customary rate (such charges
currently $950 per day for each person so employed) and expenses incurred by the Facility
Agent or its agents, delegates or nominees in connection with its taking such action as it
may, acting reasonably, deem appropriate or in complying with any instructions from the
Majority Lenders in connection with:




	 	(a)	 	any appraisals, inspections, verifications or audits of the Collateral or the
Obligor’s operations, systems, books or records forwarding loan proceeds, the
collection of all cheques and other items of payment, the establishment and maintenance
of any Cash Collateral or Collection Account or other account and defending any claims
made or threatened against the Facility Agent arising out of the transactions
contemplated hereunder;






	 	(b)	 	any actual, potential or suspected breach by any Obligor of its obligations
hereunder; or






	 	(c)	 	the investigation of the occurrence of any Default.






	30.4	 	Amendment Costs






If the Borrower requests any amendment, supplement, forbearance, consent or waiver in
accordance with Clause 31 (Amendments and Waivers) then the Borrower shall, on demand,
reimburse the Facility Agent, the Security Agent and each of the other Finance Parties for
all reasonable costs and expenses (including the fees, costs and expenses of their legal and
other advisers) together with any VAT thereon incurred by the Facility Agent, the Security
Agent or such other Finance Party in responding to, evaluating, negotiating or complying
with such request or in connection with that required amendment, supplement, forbearance,
consent or waiver (in each case, whether or not actually executed or granted).




	30.5	 	Lenders’ Liabilities for Costs





     If the Borrower fails to perform any of its obligations under this Clause 30, each Lender
shall, in the proportion that the amount of its Commitments bears to the Total Commitments,
indemnify each of the Facility Agent, the Security Agent and the Arranger against any loss
incurred by any of them as a result of such failure and the Borrower shall forthwith
reimburse each Lender for any payment made by it pursuant to this Clause 30.




	31.	 	AMENDMENTS AND WAIVERS
	 
	31.1	 	Required Consents






	 	(a)	 	Subject to Clause 31.2 (Exceptions), any term of the Finance Documents may be
amended or waived only with the consent of the Majority Lenders and, in the case of an
amendment, the Borrower and any such amendment or waiver shall be binding on all
parties.






	 	(b)	 	The Facility Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause 31.




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	31.2	 	Exceptions






	 	(a)	 	No amendment or waiver shall be made without the prior consent of all of the
Lenders if such amendment or waiver has the effect of changing or relates to:






	 	(i)	 	the definition of “Base Currency”, “Majority Lenders”,
“Eligible Receivable”, “Collections Reserve”, “Borrowing Base Availability” or
“Advance Rate” in Clause 1.1 (Definitions);
	 
	 	(ii)	 	an extension to the Maturity Date or any other date of payment
of any amount under the Finance Documents;
	 
	 	(iii)	 	a reduction in the Margin or the amount of any payment of
principal, interest, fees or commission payable; provided that a change to any
fees payable solely to the Facility Agent (in its capacity as such) shall only
require the consent of the Facility Agent;
	 
	 	(iv)	 	a change of Borrower or the release of any Guarantor from its
obligations under Clause 15 (Guarantee and Indemnity) other than as a result of
a transaction permitted by the terms of this Agreement;
	 
	 	(v)	 	an increase in or an extension of any Commitment or the Total
Commitments;
	 
	 	(vi)	 	Clause 2.4 (Obligations Several);
	 
	 	(vii)	 	release of the security constituted by the Security Documents
other than pursuant to enforcement of such security or in accordance with the
express terms of the Finance Documents;
	 
	 	(viii)	 	any provision which expressly requires the consent of all of the Lenders;
	 
	 	(ix)	 	a change in currency of payment of any amount under the Finance
Documents; or
	 
	 	(x)	 	this Clause 31 and Clause 27 (Assignments and Transfers by the
Obligors).






	 	(b)	 	Notwithstanding that any amendment or waiver has received the consent of the
Majority Lenders in accordance with Clause 31 (Required Consents), any increase or
reduction (otherwise than as already specifically contemplated in this Agreement) in
the Commitments of any Lender shall require the consent of such Lender.






	 	(c)	 	The Security Documents may be amended, varied, waived or modified with the
agreement of the relevant Obligor and the Security Agent (acting on the instructions of
the Majority Lenders).






	 	(d)	 	No amendment or waiver which relates to the rights or obligations of any Agent
or the Arranger may be made without the consent of such Agent or the Arranger, as the
case may be.






	32.	 	REMEDIES AND WAIVERS




No failure to exercise, nor any delay in exercising, on the part of the Facility Agent, the
Security Agent or any other Finance Party, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy prevent any further or
other exercise thereof or the exercise of any other right or remedy. The rights and remedies
herein provided are cumulative




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and not exclusive of any rights or remedies provided by law. A waiver given or consent granted by
any Finance Party under the Finance Documents will be effective only if given in writing and only
in the instance and for the specific purpose for which it is given.





	33.	 	NOTICES
	 
	33.1	 	Communications in Writing






Each communication to be made hereunder shall be made in writing and, unless otherwise
stated, shall be made by fax or letter.




	33.2	 	Delivery






Any communication or document to be made or delivered by one person to another pursuant to
this Agreement shall in the case of any person other than a Lender (unless that other person
has by 15 days written notice to the Facility Agent specified another address) be made or
delivered to that other person at the address identified with its signature below or, in the
case of a Lender, at the address from time to time designated by it to the Facility Agent
for the purpose of this Agreement (or, in the case of a Transferee at the end of the
Transfer Certificate to which it is a party as Transferee) and shall be deemed to have been
made or delivered when received (in the case of any communication made by fax) or (in the
case of any communication made by letter) when left at the address or (as the case may be)
five days after being deposited in the post, postage prepaid, in an envelope addressed to it
at that address; provided that any communication or document to be made or delivered to the
Facility Agent shall be effective only when received by the Facility Agent and then only if
the same is expressly marked for the attention of the department or officer identified with
the Facility Agent’s signature below (or such other department or officer as the Facility
Agent shall from time to time specify for this purpose).




	33.3	 	Electronic communication






	 	(a)	 	Any communication to be made between the Facility Agent and a Finance Party
under or in connection with the Finance Documents may be made by electronic mail or
other electronic means, if the Facility Agent and the relevant Finance Party:






	 	(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 Facility Agent and a Finance
Party will be effective only when actually received in readable form and in the case of
any electronic communication made by a Finance Party to the Facility Agent only if it
is addressed in such a manner as the Facility Agent shall specify for this purpose.




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	34.	 	CALCULATIONS AND CERTIFICATES
	 
	34.1	 	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.




	34.2	 	Certificates and Determinations






Any certification or determination by a Finance Party of a rate or amount under any Finance
Document, constitutes prima facie evidence of the matters to which it relates.




	34.3	 	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.




	35.	 	CONFIDENTIALITY
	 
	35.1	 	Confidential Information






The parties will keep confidential the Confidential Information (which obligation shall
continue for a period of 2 years following the Final Maturity Date) save that such
Confidential Information may be disclosed:




	 	(a)	 	if so required by:






	 	(i)	 	any court of competent jurisdiction or any competent judicial,
governmental, supervisory or regulatory body with jurisdiction over the affairs
of any Finance Party or any affiliate of any Finance Party; or
	 
	 	(ii)	 	any law or regulation of any country with jurisdiction over the
affairs of any Finance Party or any affiliate of any Finance Party; or
	 
	 	(iii)	 	the rules of any stock exchange on which the shares or other
securities of any member of the Group are listed; or






	 	(b)	 	to auditors, professional advisors, collection or other agents or rating
agencies; or
	 
	 	(c)	 	if required in connection with any legal proceedings; or
	 
	 	(d)	 	any of the Finance Parties may disclose Confidential Information to any other
office (including the head office) of that Finance Party, any other Finance Party, any
Obligor or any actual or prospective successor, participant, Transferee and assign;
provided that they have first entered into a confidentiality undertaking on terms
substantially equivalent to those set out herein; or
	 
	 	(e)	 	to any direct or indirect contractual counterparty in Hedging Agreements or to
such contractual counterparty’s professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to be
bound by the provisions of this Clause 35); or
	 
	 	(f)	 	with the prior written consent of the US Parent.




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	35.2	 	Unlawful Purpose






The parties agree and acknowledge that some or all of the Confidential Information is or may
be price-sensitive information and that use of such information may be regulated or
prohibited by applicable legislation relating to insider dealing. The parties agree not to
use any Confidential Information for any unlawful purpose.




	35.3	 	Superseding Obligations






The provisions of this Clause 35 shall supersede any undertakings with respect to
confidentiality previously given by any Finance Party in favour of any Obligor.




	36.	 	ENGLISH LANGUAGE




Each communication and document made or delivered by one party to another pursuant to this
Agreement shall be in the English language or accompanied by a translation thereof into English
certified (by an officer of the person making or delivering the same) as being a true and accurate
translation thereof.





	37.	 	PARTIAL INVALIDITY




If any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the
law of any jurisdiction, neither the legality, validity or enforceability of the remaining
provisions hereof nor the legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired thereby.





	38.	 	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.





	39.	 	GOVERNING LAW




This Agreement shall be governed by English law.





	40.	 	JURISDICTION
	 
	40.1	 	Jurisdiction of English Courts






	 	(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).






	 	(b)	 	The parties agree that the courts of England are the most appropriate and
convenient courts to settle such disputes and accordingly no party shall argue to the
contrary.






	 	(c)	 	This Clause 40.1 is for the benefit of the Finance Parties only. As a result,
no Finance Party shall be prevented from taking proceedings relating to such a dispute
in any other court with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of jurisdictions.






	40.2	 	Service of Process






Without prejudice to any other mode of service allowed under any relevant law, each Obligor:



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	 	(a)	 	irrevocably appoints Atmel North Tyneside Limited whose registered number is
04018730 and whose address is at Lacon House, Theobalds Road, London WC1X 8RW, U.K., 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.




IN WITNESS WHEREOF, this Agreement has been entered into on the date stated at the beginning of
this Agreement.




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SCHEDULE I

THE LENDERS




THE ORIGINAL LENDERS AND COMMITMENTS




	 	 	 	 	 
	Lender	 	Commitment	 	 
	 
	 	 	 	 
	Bank of America, N.A.

	 	US$40,000,000	 	 
	 
	 	 	 	 
	5 Canada Square
	 	 	 	 
	London E14 5AQ
	 	 	 	 
	United Kingdom
	 	 	 	 
	 
	 	 	 	 
	GMAC Commercial Finance plc

	 	US$37,500,000	 	 
	 
	 	 	 	 
	Sovereign House,
	 	 	 	 
	Church St. Brighton
	 	 	 	 
	BN1 1SS
	 	 	 	 
	 
	 	 	 	 
	Lloyds TSB Commercial Finance Limited

	 	US$35,000,000	 	 
	 
	 	 	 	 
	Boston House,
	 	 	 	 
	The Little Green
	 	 	 	 
	Richmond, Surrey
	 	 	 	 
	TW9 1QE
	 	 	 	 
	 
	 	 	 	 
	Landsbanki Islands hf.

	 	US$15,000,000	 	 
	 
	 	 	 	 
	Beaufort House,
	 	 	 	 
	15 St. Botolph Street
	 	 	 	 
	London
	 	 	 	 
	EC3A 7QR
	 	 	 	 
	 
	 	 	 	 
	GE Leveraged Loans Limited

	 	US$37,500,000	 	 
	 
	 	 	 	 
	Enterprise House,
	 	 	 	 
	Bancroft Road
	 	 	 	 
	Reigate
	 	 	 	 
	RH2 7RT
	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	US$165,000,000	 	 







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SCHEDULE 2

CONDITIONS PRECEDENT




Part IA

Conditions precedent to Effectiveness of Commitments



Upon the satisfaction or waiver of the conditions precedent set forth in this Part 1A, this
Agreement and the Commitments of the Lenders shall be effective; provided that no Lender shall be
under any obligation to make any Utilisation available to the Borrower under this Agreement until
such time and unless the conditions in Clause 3.1 (Initial Conditions Precedent), including those
set out in Part 1B of Schedule 2 (Conditions Precedent), have been satisfied or waived.





	1.	 	Formalities Certificate: A certificate from each Obligor in substantially the form set out
in Schedule 9 (Form of Formalities Certificate) signed by an Authorised Signatory of each
Obligor which shall have attached to it the documents referred to in such certificate,
including the constitutional documents (and evidencing any amendments that have been required
to be made by the Facility Agent in any jurisdiction) of each Obligor and board or managers
(gérants) and (if required by applicable law or the constitutional documents of the relevant
Obligor) shareholders’ and/or partners’ resolutions approving the Finance Documents to which
each Obligor is a party, all such documents to be in the agreed form.






	2.	 	Finance Documents: An original of each of the following documents duly executed and
delivered by all parties thereto in the agreed form:






	 	(a)	 	this Agreement;
	 
	 	(b)	 	the Security Trust and Agency Deed;
	 
	 	(c)	 	each of the following Security Documents:






	 	(i)	 	a pledge governed by Swiss law of the company share of the
Swiss Parent granted by the US Parent in favour of the Security Agent;
	 
	 	(ii)	 	a pledge governed by Swiss law of the company share of the
Borrower granted by the Swiss Parent in favour of the Security Agent;
	 
	 	(iii)	 	a pledge governed by Swiss law of the Receivables of the
Borrower granted by the Borrower in favour of the Security Agent;
	 
	 	(iv)	 	a pledge governed by Swiss law of bank accounts owned by the
Borrower located in Switzerland granted by the Borrower in favour of the
Security Agent;
	 
	 	(v)	 	a charge governed by Hong Kong law of the bank accounts owned
by the Borrower located in Hong Kong granted by the Borrower in favour of the
Security Agent;
	 
	 	(vi)	 	an assignment governed by English law of Receivables arising
under English law contracts granted by the Borrower in favour of the Security
Agent,






together with all documentation, and/or evidence of all other steps, required
(within the agreed control of the Obligors) to perfect those Security Documents as
advised to the Security Agent by its legal advisers in each relevant jurisdiction;
and




	(d)	 	the Fee Letter.





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	3.	 	Other Documents:






	 	(a)	 	A certificate of the Borrower confirming that there are no Encumbrances over
any of its Eligible Receivables (other than Encumbrances in favour of the Finance
Parties).
	 
	 	(b)	 	A solvency certificate signed by an Authorised Signatory from each Obligor
certifying the solvency of each such party as at the Signing Date.
	 
	 	(c)	 	A schedule of accurate invoice date ageing with respect to the Borrower’s
Receivables.






	4.	 	Financial Information: Copies of the Base Financial Statements certified by an Authorised
Officer of the US Parent as being true, complete and up-to-date.
	 
	5.	 	Authorisations: A copy, certified a true and up-to-date copy by or on behalf of each
Obligor, of any authorisation, approval, resolution, licence, exemption, declaration,
notarisation, registration, consent or filing or other document, opinion or assurance that is
necessary, appropriate or desirable to render each Finance Document to which such Obligor is
or is to be a party legal, valid, binding and enforceable and admissible in evidence in such
Obligor’s jurisdiction of incorporation or organisation and to enable such Obligor to perform
its obligations contemplated thereunder.
	 
	6.	 	Legal Opinions:






	 	(a)	 	A legal opinion of Nabarro Nathanson, English law counsel to the Borrower, as
to matters of English law in form and substance satisfactory to the Facility Agent.
	 
	 	(b)	 	A legal opinion of Baker & McKenzie, Swiss legal counsel to the Borrower as to
matters of Swiss law in form and substance satisfactory to the Facility Agent.
	 
	 	(c)	 	A legal opinion of Wilson Sonsini Goodrich & Rosati, US law counsel to the
Borrower, as to matters of applicable U.S. state and federal law in form and substance
satisfactory to the Facility Agent.
	 
	 	(d)	 	A legal opinion of Johnson, Stokes & Master, Hong Kong counsel to the Finance
Parties, as to matters of Hong Kong law in form and substance satisfactory to the
Facility Agent.






	7.	 	Structure:
	 
	 	 	The Group Structure Chart (showing all members of the Group).
	 
	8.	 	Miscellaneous:






	 	(a)	 	Evidence that the fees, costs and expenses required to be paid by the Obligors
pursuant to Clause 11 (Commissions and Fees), Clause 30.1 (Transaction Expenses)
(including all fees, costs and expenses of the field examiners) and Clause 13.3 (Stamp
Tax) are being or have been paid or will be paid on or before the Signing Date.
	 
	 	(b)	 	Evidence satisfactory to the Facility Agent that the Borrower has such
insurance in place as is appropriate for its business and to comply with Clause 19.4
(Insurance).
	 
	 	(c)	 	Evidence that the process agent referred to in Clause 40.2 (Service of Process)
has accepted its appointment.





94









 






	 	(d)	 	Evidence satisfactory to the Facility Agent that each Lender has carried out
and is 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.






	9.	 	No Litigation:
	 
	 	 	There shall exist no action, suit, investigation, litigation, or proceeding pending or
threatened in any court or before any arbitrator or Governmental Authority that (in the
Facility Agent’s judgment (acting reasonably)) could reasonably be expected to materially
and adversely affect this Agreement or the transactions contemplated thereby.
	 
	10.	 	US Parent
	 
	 	 	Good standing certificate for the US Parent in respect of its state of organisation,
including a “long form” good standing certificate as at a date prior to the Signing Date
acceptable to the Facility Agent.
	 
	11.	 	Borrowing Base Certificate
	 
	 	 	A Borrowing Base Certificate in respect of the Borrower prepared as of the last day of
February 2006 reflecting the level of Eligible Receivables for the month then ending,
verified by the Facility Agent’s field examiners.
	 
	12.	 	Financial Information/Diligence
	 
	 	 	Completed due diligence in respect of the Obligors including a completed appraisal from the
Facility Agent’s field examiners addressed to the Facility Agent in respect of the
Receivables of the Borrower, in form and substance satisfactory to the Facility Agent,
together with any further information required by such field examiners.
	 
	13.	 	Minimum Available Cash
	 
	 	 	Evidence in form and substance satisfactory to the Facility Agent that the US Parent is in
compliance with Clause 19.14 (Minimum Available Cash).





95









 





Part IB

Conditions precedent to the Initial Funding Date





	1.	 	Cash Management






	 	(a)	 	Evidence satisfactory to the Facility Agent that arrangements have been made
with each Third Party Account Bank to implement any automatic (or manual, as
applicable) cash sweep arrangements required in respect of Existing Collection Accounts
under Clause 19.11 (Cash Management).
	 
	 	(b)	 	Executed notices and acknowledgements from account banks in connection with the
Security Documents listed at paragraph 2(c)(iv) and (v) of Part IA of Schedule 2 or
other documents acceptable to the Facility Agent sufficient to establish full cash
dominion in respect of the accounts of the Borrower and cash management systems
acceptable to the Facility Agent.






	2.	 	Insurance Endorsement
	 
	 	 	Evidence of the endorsing of the Borrower’s insurance policies in accordance with Clause
19.4(b) (Insurance).
	 
	3.	 	Utilisation






	 	(a)	 	A schedule detailing the wire instructions in respect of the proposed movement
of funds or other Utilisation on the Initial Funding Date.
	 
	 	(b)	 	A Utilisation Request for the initial Utilisation.





96









 





SCHEDULE 3

REQUESTS




PART I

FORM OF UTILISATION REQUEST – LIBOR LOANS




	 	 	 
	From:

	 	[Borrower]
	 
	 	 
	To:

	 	[Facility Agent]





Dated:



Dear Sirs





	1.	 	We refer to the facilities agreement (the “Facility Agreement”) dated [•] 2006 and
made, inter alios, between Atmel Corporation as parent, Banc of America Securities LLC as the
Arranger, the lenders listed therein, and Bank of America, N.A. as the Facility Agent and
Security Agent.
	 
	2.	 	This is a Utilisation Request. Terms defined in the Facility Agreement shall have the same
meaning in this Utilisation Request. This Utilisation Request is a Finance Document.
	 
	3.	 	We hereby give you notice that, pursuant to the Facility Agreement we wish to borrow the
following LIBOR Loan upon the terms and subject to the conditions contained therein:






	 	(a)	 	Amount: $[•] or, if less, the Available Facility
	 
	 	(b)	 	Proposed Utilisation Date: [•] (or, if that is not a Business Day, the
next Business Day); and
	 
	 	(c)	 	Interest Period: [•].






	4.	 	We confirm that each condition specified in Clause 3 (Conditions Precedent) of the Facility
is satisfied on the date of this Utilisation Request.
	 
	5.	 	The proceeds of this Utilisation should be credited to [insert account details].
	 
	6.	 	This Utilisation Request is irrevocable.





Yours faithfully



                                                            




Authorised Signatory for

[Name of Borrower]




97









 





PART II

FORM OF UTILISATION REQUEST — REFERENCE RATE LOANS




	 	 	 
	From:

	 	[Borrower]
	 
	 	 
	To:

	 	[Facility Agent]





Dated:



Dear Sirs





	1.	 	We refer to the facilities agreement (the “Facility Agreement”) dated [•] 2006 and
made, inter alios, between Atmel Corporation as the parent, Banc of America Securities LLC as
the Arranger, the lenders listed therein, and Bank of America, N.A. as the Facility Agent and
Security Agent.
	 
	2.	 	This is a Utilisation Request. Terms defined in the Facility Agreement shall have the same
meaning in this Utilisation Request. This Utilisation Request is a Finance Document.
	 
	3.	 	We hereby give you notice that, pursuant to the Facility Agreement we wish to borrow the
following Reference Rate Loan upon the terms and subject to the conditions contained therein:






	 	(a)	 	Amount: $[•] or, if less, the Available Facility; and
	 
	 	(b)	 	Proposed Utilisation Date: [•] (or, if that is not a Business Day, the
next Business Day).






	4.	 	We confirm that each condition specified in Clause 3 (Conditions Precedent) of the Facility
is satisfied on the date of this Utilisation Request.
	 
	5.	 	The proceeds of this Utilisation should be credited to [insert account details].
	 
	6.	 	This Utilisation Request is irrevocable.





Yours faithfully




                                                            




Authorised Signatory for

[Name of Borrower]




98









 





SCHEDULE 4

MANDATORY COST FORMULAE





	1.	 	The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.
	 
	2.	 	On the first day of each Interest Period (or as soon as possible thereafter) the Facility
Agent shall calculate, as a percentage rate, a rate (the “Additional Costs Rate”) for each
Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be
calculated by the Facility Agent as a weighted average of the Lenders’ Additional Costs Rates
(weighted in proportion to the percentage participation of each Lender in the relevant Loan)
and will be expressed as a percentage rate per annum.
	 
	3.	 	The Additional Costs Rate for any Lender lending from a Facility Office in a Participating
Member State will be the percentage notified by that Lender to the Facility Agent. This
percentage will be certified by that Lender in its notice to the Facility Agent to be its
reasonable determination of the cost (expressed as a percentage of that Lender’s participation
in all Loans made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from that Facility Office.
	 
	4.	 	The Additional Costs Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Facility Agent as follows:






	 	(a)	 	in relation to a sterling Loan:





AB + C(B–D) + E x 0.01 % per annum




100 – (A+C)





	 	(b)	 	in relation to a Loan in any currency other than sterling:





E
x 0.01 % per annum




300         
           



Where on the day of application of the formula:





	 	A	 	is the percentage of Eligible Liabilities (assuming these to be
in excess of any stated minimum) which that Lender is from time to time
required to maintain as an interest free cash ratio deposit with the Bank of
England to comply with cash ratio requirements.
	 
	 	B	 	is the percentage rate of interest (excluding the applicable
Margin and the Mandatory Cost and, if the relevant Loan is an Overdue Amount,
the additional rate of interest specified in Clause 10.3 (Default Interest))
payable for the relevant Interest Period on the Loan.
	 
	 	C	 	is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.





99









 






	 	D	 	is the percentage rate per annum payable by the Bank of England
to the Facility Agent on interest bearing Special Deposits.
	 
	 	E	 	is designed to compensate the Lenders for amounts payable under
the Fees Rules and is calculated by the Facility Agent as being the average of
the most recent rates of charge supplied by the Reference Lenders to the
Facility Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000.






	5.	 	For the purposes of this Schedule:






	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings given to them
from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
	 
	 	(b)	 	“Fees Rules” means the rules on periodic fees contained in the FSA Supervision
Manual or such other law or regulation as may be in force from time to time in respect
of the payment of fees for the acceptance of deposits;
	 
	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fee Rules but taking into account any applicable discount
rate);
	 
	 	(d)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.






	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places.
	 
	7.	 	If requested by the Facility Agent, each Reference Lender shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Facility Agent, the rate of
charge payable by that Reference Lender to the Financial Services Authority pursuant to the
Fees Rules in respect of the relevant financial year of the Financial Service Authority
(calculated for this purpose by that Reference Lender as being the average of the Fee Tariffs
applicable to that Reference Lender for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of that Reference Lender.
	 
	8.	 	Each Lender shall supply any information required by the Facility Agent for the purpose of
calculating its Additional Costs Rate. In particular, but without limitation, each Lender
shall supply the following information in writing on or prior to the date on which it becomes
a Lender:






	 	(a)	 	the jurisdiction of its Facility Office; and
	 
	 	(b)	 	any other information that the Facility Agent may reasonably require for such
purpose.






	 	 	Each Lender shall promptly notify the Facility Agent in writing of any change to the
information provided by it pursuant to this paragraph.
	 
	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Lender for the purposes of E above shall be determined by the Facility Agent
based upon the information supplied to it pursuant to paragraph 7 and 8 above and on the
assumption that, unless a Lender notifies the Facility Agent to the contrary, each Lender’s





100









 







	 	 	obligations in relation to cash ratio deposits and Special Deposits are the same as those of
a typical bank from its jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
	 
	10.	 	The Facility Agent shall have no liability to any person if such determination results in an
Additional Costs Rate which over or under compensates any Lender and shall be entitled to
assume that the information provided by any Lender or Reference Lender pursuant to paragraphs
3, 7 and 8 above is true and correct in all respects.
	 
	11.	 	The Facility Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Costs Rate for each Lender based
on the information provided by each Lender and each Reference Lender pursuant to paragraphs 3,
7 and 8 above.
	 
	12.	 	Any determination by the Facility Agent pursuant to this Schedule in relation to a formula,
the Mandatory Cost, an Additional Costs Rate or any amount payable to a Lender shall, in the
absence of manifest error, be conclusive and binding on all parties.
	 
	13.	 	The Facility Agent may from time to time, after consultation with the Borrower and the
Lenders, determine and notify to all parties any amendments which are required to be made to
this Schedule in order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or any of its functions)
and any such determination shall, in the absence of manifest error, be conclusive and binding
on all parties.





101









 





SCHEDULE 5

FORM OF TRANSFER CERTIFICATE




To: [               ]




TRANSFER CERTIFICATE



This Transfer Certificate relates to the facilities agreement (as from time to time amended,
varied, novated or supplemented, the “Facility Agreement”) dated [•] 2006 between, inter
alios, Atmel Corporation as the parent and Banc of America LLC as the Arranger, the lenders listed
therein, and Bank of America, N.A., as the Facility Agent and Security Agent.





	1.	 	Terms defined in the Facility Agreement shall, subject to any contrary indication, have the
same meanings herein. The terms Lender, Transferee, Lender’s Participation and Amount
Transferred are defined in the Schedule hereto.
	 
	2.	 	The Lender confirms that the Lender’s Participation is an accurate summary of its
participation in the Facility Agreement and requests the Transferee to accept and procure the
transfer to the Transferee of a percentage of the Lender’s Participation (equal to the
percentage that the Amount Transferred is of the aggregate of the component amounts (as set
out in the Schedule hereto) of the Lender’s Participation) by countersigning and delivering
this Transfer Certificate to the Facility Agent at its address for the service of notices
designated to the Facility Agent in accordance with the Facility Agreement.
	 
	3.	 	The Transferee hereby requests the Facility Agent to accept this Transfer Certificate as
being delivered to the Facility Agent pursuant to and for the purposes of Clause 24.4
(Transfers by Lenders) of the Facility Agreement so as to take effect in accordance with the
terms thereof on the Transfer Date or on such later date as may be determined in accordance
with the terms thereof.
	 
	4.	 	The Transferee confirms that on the date on which it becomes a party to the Facility
Agreement, it is a bank or financial institution or a trust, fund or other entity engaged for
the purpose of making, purchasing or investing in loans, securities or other financial assets
and confirms that it has received a copy of the Facility Agreement together with such other
information as it has required in connection with this transaction and that it has not relied
and will not rely on the Lender to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such information and further agrees
that it has not relied and will not rely on the Lender to assess or keep under review on its
behalf the financial condition, creditworthiness, condition, affairs, status or nature of any
Obligor or any other party to the Facility Agreement.
	 
	5.	 	The Transferee hereby undertakes with the Lender and each of the other parties to the
Facility Agreement that it will perform in accordance with their terms all those obligations
which by the terms of the Facility Agreement will be assumed by it after delivery of this
Transfer Certificate to the Facility Agent and satisfaction of the conditions (if any) subject
to which this Transfer Certificate is expressed to take effect.
	 
	6.	 	The Transferee hereby expressly consents to all declarations of the Security Agent made on
behalf and in the name of the Transferee in any of the Security Documents and acknowledges
that it is aware of the contents of such documents.
	 
	7.	 	The Lender makes no representation or warranty and assumes no responsibility with respect to
the legality, validity, effectiveness, adequacy or enforceability of the Facility Agreement or
any document relating thereto and assumes no responsibility for the financial condition of any
Obligor or for the performance and observance by any Obligor of any of its obligations under





102









 






	 	 	the Facility Agreement or any document relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby excluded.
	 
	8.	 	The Lender hereby gives notice that nothing herein or in the Facility Agreement (or any
document relating thereto) shall oblige the Lender to (a) accept a re-transfer from the
Transferee of the whole or any part of its rights, benefits and/or obligations under the
Facility Agreement transferred pursuant hereto or (b) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason whatsoever including the non
performance by any Obligor or any other party to the Facility Agreement (or any document
relating thereto) of its obligations under any such document. The Transferee hereby
acknowledges the absence of any such obligation as is referred to in sub-clause (a) or (b)
above.
	 
	9.	 	This Transfer Certificate and the rights, benefits and obligations of the parties hereunder
shall be governed by and construed in accordance with English law.





THE SCHEDULE




	 	 	 
	Lender:
	 	 
	 
	 	 
	 
	 	 
	Transferee:
	 	 
	 
	 	 
	Transfer Date:
	 	 
	 
	 	 
	Lender’s Participation:
	 	 
	 
	 	 
	Lender’s Available Commitments:*
	 	 
	 
	 	 
	Lender’s Portion of the Utilisations:
	 	 
	 
	 	 
	Amount Transferred:
	 	 
	 
	 	 
	[Transferor Lender]

	 	[Transferee]
	 
	 	 
	By:

	 	By:
	 
	 	 
	Date:

	 	Date:
	 
	 	 
	
Administrative Details of Transferee
	 
	 	 
	Address:
	 	 
	 
	 	 
	 
	 	 
	Contact Name:
	 	 
	 
	 	 
	Account for Payments:
	 	 
	 
	 	 
	Fax:
	 	 
	 
	 	 
	Telephone:
	 	 






103









 





SCHEDULE 6

FORM OF ACCESSION AGREEMENT




THIS ACCESSION AGREEMENT is dated [insert date]




BETWEEN:





	(1)	 	[insert name] (registered number [insert number]) (the “[New Hedging Bank]”); and
	 
	(2)	 	[insert name] in its capacity as Facility Agent under the Facility Agreement.





WHEREAS:





	 	(A)	 	This Agreement is entered into in connection with a facilities agreement (the
“Facility Agreement”) dated [•] 2006 and made between, inter alios, Atmel SARL as
the Borrower, Bank of America, N.A., as the Original Lender and Bank of America, N.A.,
as the Facility Agent and Security Agent.
	 
	 	(B)	 	This agreement has been entered into to record the admission of the [New
Hedging Bank] as a [Hedging Bank] under the Facility Agreement.




NOW IT IS HEREBY AGREED AS FOLLOWS:





	1	 	Definitions




Terms defined in the Facility Agreement shall have the same meaning when used in this Accession
Agreement.





	2	 	Admission of [New Hedging Bank]






	 	(a)	 	The [New Hedging Bank] agrees to become a [Hedging Bank] under the Facility
Agreement and agrees to be bound by the terms of the Facility Agreement as if it had
been named as a [Hedging Bank] thereunder.
	 
	 	(b)	 	[The [New Hedging Bank] hereby confirms the appointment of the [Facility Agent]
as its Agent for the purposes specified in and on the terms set out in the Facility
Agreement.]
	 
	 	(c)	 	The [New Hedging Bank] confirms that its address details for notices under the
Facility Agreement are as follows:
	 
	 	(d)	 	By their signature below the parties to this Accession Agreement (other than
the [New Hedging Bank]) confirm their acceptance of the [New Hedging Bank] as a
[Hedging Bank] for all purposes of the Facility Agreement.
	 
	 	(e)	 	By its signature below, the Borrower confirms the agreement of each of the
existing Obligors to the accession of the [New Hedging Bank] to the Facility Agreement
on the terms set out herein under the Finance Documents.






	3	 	Governing Law and Submission to Jurisdiction
	 
	 	 	The provisions of Clauses 39 (Governing Law) and 40 (Jurisdiction) of the Facility Agreement
shall apply to this Accession Agreement mutatis mutandis as though set out in full herein.
	 
	4	 	Counterparts





104









 






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.


IN WITNESS whereof the parties have caused this Accession Agreement to be duly executed on the date
first written above.



[                 ]



by:



Address:



[                 ]



by:



Address:



[                 ]



by:



Address:




105









 





SCHEDULE 7

FORM OF COMPLIANCE CERTIFICATE




	 	 	 
	To:

	 	[•] as Facility Agent
	 
	 	 
	Date:

	 	[      ]





Dear Sirs,





	1.	 	We refer to the facilities agreement (as from time to time amended, varied or supplemented,
the “Facility Agreement”) dated [•] 2006 whereby loan and revolving credit facilities
was made available to, amongst others, [•] by a group of lenders on whose behalf
[•] acted as Facility Agent in connection therewith.
	 
	2.	 	Terms defined in the Facility Agreement shall bear the same meaning herein.
	 
	3.	 	We confirm that:
	 
	 	 	[Insert details of each of the financial covenants in Clause 21 (Financial Covenants) to be
certified, in each case such calculations to be in reasonable detail]
	 
	4.	 	[We confirm that no Default was continuing unremedied or unwaived on [specify year end or
quarter end date to which certificate relates] [other than
[    ]]*.]
	 
	5.	 	[We confirm that the Representations and Warranties set forth in paragraph (b) of Clause 17.2
(Repetition) were true and correct on [specify year end or quarter end date to which
certificate relates] [other than
[     ]]*.]
	 
	6.	 	[In the case of annual audited Financial Statements following a change in Approved Accounting
Principles, the accounting practices or reference periods and the Borrower’s Auditors pursuant
to paragraph (c)(ii) of Clause 18.6 (Accounting Standards), insert:






	 	(a)	 	a description of any change necessary for the Financial Statements to reflect
the Approved Accounting Principles, accounting practices and reference periods upon
which the Projections were, or, as the case may be, the Base Financial Statements were,
prepared; and
	 
	 	(b)	 	sufficient information to enable the Lenders to determine whether the
undertakings set forth in Clause 21 (Financial Covenants) has been complied with and to
make an accurate comparison between the financial position indicated in those Financial
Statements and the Projections.]*





	 	 	 
	Signed:                                                            

	 	Signed:                                                            
	Director

	 	Director
	of

	 	of
	[___]

	 	[___]
	 
	 	 
	and/or
	 	 







106








 







	 	 	 
	for and on behalf of
	 	 
	[name of Auditors]
	 	 







 




			
	*	 	Only to be given by the US Parent, not the Auditors.





107









 





SCHEDULE 8

FORM OF FORMALITIES CERTIFICATE




[Insert name of Company]




(the “Obligor”)




Facility Agreement dated [•] 2006

(the “Facility Agreement”)



To: Bank of America, N.A., as the Facility Agent under the Facility Agreement.



I [•] being a [director] [corporate officer] of the Obligor and being duly authorised by the
board of directors or other governing body of the Obligor to deliver this certificate hereby make
the following certifications and confirmations. Terms defined in the Facility Agreement shall bear
the same meaning when used herein.





	1.	 	Constitutional Documents
	 
	 	 	Attached hereto marked A are true, complete and up-to-date copies of:






	 	(a)	 	the certificate of incorporation of the Obligor as amended to date;
	 
	 	(b)	 	all certificates of incorporation on change of name of the Obligor (if any);
and
	 
	 	(c)	 	the constitutional documents of the Obligor consisting of [•].






	2.	 	Extract Board Resolutions






Attached hereto marked B is a true and complete extract from the minutes of a meeting of the
board of directors or other governing body of the Obligor duly convened and held (during
which a quorum was present throughout) recording resolutions passed at such meeting or duly
adopted by unanimous written consent as permitted by applicable law and the organisational
documents of the Obligor (which resolutions are in full force and effect and have not been
rescinded or varied) and which:




	 	(a)	 	approve the terms of the Finance Documents to which it is a party and all
transactions contemplated thereby and resolving that it execute, deliver and perform
its obligations under the Finance Documents to which it is a party;
	 
	 	(b)	 	authorise a specified person or persons to execute the Finance Documents to
which the Obligor is a party on its behalf; and
	 
	 	(c)	 	authorise a specified person or persons, on behalf of the Obligor, to sign
and/or despatch all documents and notices (including, if relevant any Utilisation
Request) to be signed and/or despatched by the Obligor under or in connection with the
Finance Documents to which it is a party.






	3.	 	[Shareholder Resolutions
	 
	 	 	Attached hereto marked C is a true and complete copy of a resolution of all the shareholders
of the Borrower unanimously passed authorising and directing the execution and performance
by the Borrower of the Finance Documents to which it is a party.]





108









 






	4.	 	Authorised Signatories
	 
	 	 	The following signatures are the specimen signatures of the person or persons authorised by
the resolution of the board of directors of the Obligor referred to in paragraph 2 above,
and who have signed such documents:





	 	 	 	 	 
	Name	 	Position	 	Signature
	       
                  
                                 


	 	                                                            
	 	                                                            
	                                                            

	 	                                                            
	 	                                                            







	5.	 	No Breach of Borrowings Limit
	 
	 	 	I have examined the terms of the Finance Documents, all shareholder agreements, the
Memorandum and Articles of Association and all other relevant constitutional documents of
the Obligor and I confirm that entry into the Finance Documents and borrowing, securing or
guaranteeing, as appropriate, the Total Commitments, taking into account the terms of any
other Indebtedness of the Obligor and any other document binding on the Obligor:






	 	(a)	 	will be within the corporate powers of the Obligor; and
	 
	 	(b)	 	does not or will not cause to be exceeded any borrowing, securing, guaranteeing
or similar limit or restriction on any of the powers of the Obligor or the right or
ability of the directors of the Obligor to exercise such powers.






	6.	 	Encumbrances
	 
	 	 	I hereby certify that the Eligible Receivables are not subject to any Encumbrances other
than Encumbrances in favour of the Finance Parties.
	 
	7.	 	Accuracy of Documents
	 
	 	 	Each copy document relating to the Obligor specified in Part I (Conditions Precedent
Documents for the Signing Date) of Schedule 2 (Conditions Precedent) is correct, complete
and in full force and effect and has not been amended, superseded or suspended as of the
date hereof.
	 
	8.	 	Authorisations
	 
	 	 	A copy, certified a true and up-to-date copy by or on behalf of the Obligor, of each such
authorisation, approval, resolution, licence, exemption, declaration, notarisation,
registration, consent or filing or other document, opinion or assurance that is necessary,
appropriate or desirable to render each Finance Document to which the Obligor is or is to be
a party legal, valid, binding and enforceable and admissible in evidence in the Obligor’s
jurisdiction of incorporation or organisation and to enable the Obligor to perform its
obligations contemplated thereunder.
	 
	9.	 	Solvency
	 
	 	 	Solely in our capacity as directors, we certify on behalf of the Obligor that, having made
all reasonable enquiries, as of the date hereof and upon giving effect to the transactions
contemplated by the Finance Documents and the financing to be provided thereunder:





109









 





     [For Swiss Obligor]




	 	(a)	 	the Obligor is solvent and is paying and able to pay its debts as they fall due
and will not become unable to do so in consequence of the execution by it of the
Facility Agreement or any other Finance Document to which it is expressed to be a party
and the performance by it of the transactions envisaged hereby and thereby; and






	 	(b)	 	The Obligor is not in a situation of loss of capital or over
indebtedness within the meaning of article 817 and article 725 of the Swiss Code of
Obligations.
	 
	 	(c)	 	the Obligor has not taken any corporate action, nor have any other
steps been taken or legal proceedings been started or, to the best of its knowledge
or belief, threatened against it, for its winding up, dissolution, arrangement,
reconstruction or reorganisation or for the appointment of a liquidator, receiver,
manager, administrator, administrative receiver, any judicial manager or similar
officer of it or of any of its assets or revenues.





     [For US Obligor]




	 	(a)	 	the Obligor is solvent, the fair value of the assets of the Obligor exceeds its
debts and liabilities, subordinated, contingent or otherwise, the present fair saleable
value of the property of the Obligor is greater than the amount that will be required
to pay the probably liability on its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured, the Obligor is
able to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured, it does not have unreasonably small
capital with which to conduct its business as now conducted and proposed to be
conducted, and none of the foregoing shall become untrue as a consequence of the
execution by it of the Facility Agreement or any other Finance Document to which it is
expressed to be a party and the performance by it of the transactions envisaged hereby
and thereby;
	 
	 	(b)	 	the Obligor has not taken any corporate action, nor have any other steps been
taken or legal proceedings been started or, to the best of its knowledge or belief,
threatened against it, for a proceeding under any US Bankruptcy Law or for its winding
up, dissolution, arrangement, reconstruction or reorganisation or for the appointment
of a trustee, liquidator, custodian, monitor, receiver, manager, administrator,
administrative receiver or similar officer of it or of any of its assets or revenues.






	10.	 	No Litigation
	 
	 	 	I hereby certify that there exists no action, suit, investigation, litigation or proceeding
pending or threatened in any court of before any arbitrator or Governmental Authority that
could reasonably be expected to materially and adversely affect the Facility Agreement or
the transactions contemplated thereby.




Signed:                        




 



DIRECTOR



 



Date:                        





110









 





SCHEDULE 9

FORM OF BORROWING BASE CERTIFICATE




BORROWING BASE CERTIFICATE




Borrower: Atmel SARL




Commitment Amount: $165,000,000




	 	 	 	 	 
	RECEIVABLES
	 	 	 	 
	 
	 	 	 	 
	1. Beginning Balance –

	 	 	 	$                     
	    Account Receivables Book Value as of
	 	 	 	 
	 
	 	 	 	 
	2. Plus: Sales as of

	 	 	 	$                     
	 
	 	 	 	 
	3. Less: Credits as of

	 	$                     	 	 
	 
	 	 	 	 
	4. Less: Gross Collections

	 	$                     	 	 
	 
	 	 	 	 
	5. +/- Adjustments

	 	$                     	 	 
	 
	 	 	 	 
	6. Ending Balance –

	 	 	 	$                     
	    TOTAL ACCOUNTS RECEIVABLE
	 	 	 	 
	 
	 	 	 	 
	RECEIVABLE DEDUCTIONS (without duplications)
	 	 	 	 
	 
	 	 	 	 
	7. Amounts over 120 days from invoice
date

	 	$                     	 	 
	 
	 	 	 	 
	8. Amounts over 60 days from due date

	 	$                     	 	 
	 
	 	 	 	 
	9. Concentration Limits

	 	$                     	 	 
	 
	 	 	 	 
	10. Receivables not governed by
Approved Governing Laws

	 	$                     	 	 
	 
	 	 	 	 
	11. Ineligible Receivables owed by
Account Debtors located outside
Eligible
Jurisdictions1

	 	$                     	 	 
	 
	 	 	 	 
	12. Governmental Accounts

	 	$                     	 	 
	 
	 	 	 	 
	13. Contra Accounts

	 	$                     	 	 
	 
	 	 	 	 
	14. Other (please explain on reverse)

	 	$                     	 	 
	 
	 	 	 	 
	15. Other (please explain on reverse)

	 	$                     	 	 
	 
	 	 	 	 
	16. TOTAL RECEIVABLE DEDUCTIONS

	 	$                     	 	 






111









 







	 	 	 	 	 
	17. TOTAL ELIGIBLE RECEIVABLES

	 	 	 	$                     
	      (#6 minus #16)
	 	 	 	 
	 
	 	 	 	 
	18. LOAN VALUE OF RECEIVABLES

	 	 	 	$                     
	      (85% OF #17)
	 	 	 	 
	 
	 	 	 	 
	BALANCES
	 	 	 	 
	 
	 	 	 	 
	19. Maximum Credit

	 	 	 	$                     
	 
	 	 	 	 
	20. Reserve

	 	 	 	$                     
	 
	 	 	 	 
	21. Collections Reserve

	 	 	 	$[20,000,000]
	 
	 	 	 	 
	 

	 	 	 	[10,000,000] [0]
	22. TOTAL FUNDS AVAILABLE

	 	 	 	$                     
	      (Lesser of #18 or #19, Minus #20, Minus #21)
	 	 	 	 
	 
	 	 	 	 
	23. Present balance owing on Line of Credit

	 	 	 	$                     
	 
	 	 	 	 
	24. NET AVAILABILITY

	 	 	 	$                     
	       (#22 minus #23)
	 	 	 	 








 




			
	1
 Eligible Receivables owed by Account Debtors located outside Eligible
Jurisdictions are subject to a cap equal to the lesser of US$11,750,000 or 20% of the total
aggregate amount of Eligible Receivables; calculation of ineligibles reported in 11. to be as
follows:






	 	 	 	 	 	 	 
	1A.

	 	Receivables owed by Account Debtors located outside
Eligible Jurisdictions
	 	 	 	$                     
	 
	 	 	 	 	 	 
	2A.

	 	Lesser of US$11,750,000 or 20% of the total aggregate
amount of Eligible Receivables.
	 	 	 	$                     
	 
	 	 	 	 	 	 
	3A.

	 	Ineligible Receivables owed by Account Debtors located
outside Eligible Jurisdictions (#1A minus #2A ;$0 if 2A
> 1A)
	 	 	 	$                     






ATMEL SARL




By:                                                             




Authorised Signer




112









 





SCHEDULE 10

TIMETABLES




LOANS




     “D- ” refers to the number of Business Days before the relevant Utilisation Date



	 	 	 
	"D- " refers to the number of Business Days	 	 
	before the relevant Utilisation Date	 	Loans in US $
	 
	Delivery of a duly completed
Utilisation Request (Clause 4.1

	 	D-3
	(Utilisation Conditions to LIBOR
Loans))

	 	9.30am
	 
	 	 
	Facility Agent notifies the Lenders
of the Utilisation in accordance

	 	D-3
	with Clause 4.3 (Participation of
Lenders)

	 	noon
	 
	 	 
	Delivery of a duly completed
Utilisation Request (Clause 5.1

	 	D-2
	(Utilisation Conditions to Reference
Rate Loans))

	 	9.30am
	 
	 	 
	Facility Agent notifies the Lenders
of the Utilisation in accordance

	 	D-2
	with Clause 5.3 (Participation of
Lenders)

	 	noon
	 
	 	 
	LIBOR is fixed

	 	Quotation Day as of 11:00 a.m.
	 

	 	(London time) in respect of LIBOR






113









 





SIGNATORIES




	 	 	 
	The Borrower
	 
	 	 
	ATMEL SARL
	 
	 	 
	By:
	 	/s/ J. Michael Ross
	 
	 	 
	Address: Atmel Sarl
	 

	 	Rte des Arsenaux 41
	 

	 	P.O. Box 80
	 

	 	CH-1705 Fribourg
	 

	 	Switzerland
	 
	 	 
	Attention:

	 	Graham Turner, Managing Director (with a copy to Mike Ross at Atmel Corporation)
	 
	 	 
	Tel:

	 	+11-41-26-426-5503
	Fax:

	 	+11-41-26-426-5500
	 
	 	 
	The Guarantors
	 
	 	 
	ATMEL CORPORATION
	 
	 	 
	By:
	 	/s/ J. Michael Ross
	 
	 	 
	Address:

	 	Atmel Corporation

2325 Orchard Parkway

San Jose, CA 95131
	 
	 	 
	Attention:

	 	Mike Ross, Vice President and General Counsel
	Tel:

	 	+1 (408) 436-4229
	Fax:

	 	+1 (408) 436-4111
	 
	 	 
	ATMEL SWITZERLAND SARL
	 
	 	 
	By:
	 	/s/ J. Michael Ross
	 
	 	 
	Address:

	 	Atmel Switzerland Sarl

Rte des Arsenaux 41

P.O. Box 80

CH-1705 Fribourg

Switzerland
	 
	 	 
	Attention:

	 	Graham Turner, Managing Director (with a copy to Mike Ross at Atmel Corporation)
	 
	 	 
	Tel:

Fax:

	 	+11-41-26-426-5503

+11-41-26-426-5500






114









 





	 	 	 
	The Original Lenders
	 
	 	 
	BANK OF AMERICA, N.A.
	 
	 	 
	By:
	 	/s/ Justin Van Ast
	 
	 	 
	Address:

	 	Bank of America, N.A.

5 Canada Square

London

E14 5AQ
	 
	 	 
	Attention:

	 	Justin van Ast

Client Manager
	Fax:

	 	+44 (0) 20 7174 6427
	 
	 	 
	GMAC COMMERCIAL FINANCE PLC
	 
	 	 
	By:
	 	/s/ Mark Mckee
	 
	 	 
	Address:

	 	GMAC Commercial Finance plc

Sovereign House,

Church St. Brighton

BN1 1SS
	 
	 	 
	Attention:

	 	Yvonne Stewart

Senior Client Accounting Executive
	 
	 	 
	Fax:

	 	+44 (0) 1273 864 579
	 
	 	 
	LLOYDS TSB COMMERCIAL FINANCE LIMITED
	 
	 	 
	By:
	 	/s/ Paul Herrington
	 
	 	 
	Address:

	 	Lloyds TSB Commercial Finance Limited

Boston House,

The Little Green

Richmond, Surrey

TW9 1QE
	 
	 	 
	Attention:

	 	Paul Herrington, Global Sales Director

Jonathan Fenton-Jones, Client Manager
	 
	 	 
	Fax:

	 	+44 (0) 20 8332 7761






115









 





	 	 	 
	LANDSBANKI ISLANDS HF
	 
	 	 
	By:
	 	/s/ David Morris
	 
	 	 
	Address:

	 	Landsbanki Commercial Finance
	 

	 	Beaufort House,
	 

	 	15 St. Botolph Street
	 

	 	London
	 

	 	EC3A 7QR
	 
	 	 
	Attention:

	 	David Morris

Joint Managing Director
	 
	 	 
	Fax:

	 	+44 (0) 20 7866 5101
	 
	 	 
	GE LEVERAGED LOANS LIMITED
	 
	 	 
	By:
	 	/s/ Authorized Signatory
	 
	 	 
	Address:

	 	GE Leveraged Loans Limited

Enterprise House,

Bancroft Road,

Reigate

RH2 7RT
	 
	 	 
	Attention:

	 	Gary Brownleader
	 
	 	 
	Fax:

	 	+44 (0) 1737 841354






116









 





	 	 	 
	The Facility Agent
	 
	 	 
	BANK OF AMERICA, N.A.
	 
	 	 
	By:
	 	/s/ Justin Van Ast
	 
	 	 
	Address:

	 	Bank of America, N.A.
	 

	 	5 Canada Square
	 

	 	London
	 

	 	E14 5AQ
	 
	 	 
	Attention:

	 	Justin van Ast
	 

	 	Client Manager
	 
	 	 
	Fax:

	 	+44(0) 20 7174 6427
	 
	 	 
	The Security Agent
	 
	 	 
	BANK OF AMERICA, N.A.
	 
	 	 
	By:
	 	/s/ Justin Van Ast
	 
	 	 
	 
	 	 
	Address:

	 	Bank of America, N.A.
	 

	 	5 Canada Square
	 

	 	London
	 

	 	E14 5AQ
	 
	 	 
	Attention:

	 	Justin van Ast
	 

	 	Client Manager
	 
	 	 
	Fax:

	 	+44(0) 20 7174 6427
	 
	 	 
	The Arranger
	 
	 	 
	BANC OF AMERICA SECURITIES LLC
	 
	 	 
	By:
	 	/s/ James B. Mascott







117