**Exhibit 10.2**

 

**CONFORMED COPY**

 

 

*€330,000,000*

 

FACILITY AGREEMENT

 

Dated 17 June 2008

 

for

 

*DEUKALIONEINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS - GmbH*

 

arranged by

*MERCHANTBANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) AND NORDEA BANK FINLAND PLC*

 

with

 

*MERCHANTBANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)*

acting as Agent

 

and

* *

*MERCHANT BANKING,SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)*

acting as Security Agent

 

and

* *

*MERCHANT BANKING,SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)*

acting as Issuing Bank

 

 

Ref: NHAX/GEM

 

Linklaters LLP

 

----

 

**CONTENTS**

 
| **CLAUSE** |                                                     | **PAGE** |
|------------|----------------------------------------------------------|----------|
|       | ** **                                               |     |
|       | **SECTION 1**                                       |     |
|       | **INTERPRETATION**                                       |     |
| 1.         | Definitions  and interpretation                          | 1        |
|       | ** **                                               |     |
|       | **SECTION 2**                                       |     |
|       | **The Facilities**                                       |     |
| 2.         | The Facilities                                           | 31       |
| 3.         | Purpose                                                  | 31       |
| 4.         | Conditions  of Utilisation                               | 31       |
|       |                                                     |     |
|       | **SECTION 3**                                       |     |
|       | **UTILISATION**                                          |     |
| 5.         | Utilisation  - Loans                                     | 34       |
| 6.         | Utilisation - Letters of  Credit and Bank Guarantees     | 35       |
| 7.         | Letters of Credit and Bank  Guarantees                   | 38       |
| 8.         | Optional Currencies                                      | 42       |
| 9.         | Ancillary Facilities                                     | 43       |
|       |                                                     |     |
|       | **SECTION 4**                                       |     |
|       | **REPAYMENT, PREPAYMENT AND  CANCELLATION**              |     |
| 10.        | Repayment                                                | 47       |
| 11.        | Prepayment and  cancellation                             | 48       |
|       |                                                     |     |
|       | **SECTION 5**                                       |     |
|       | **COSTS OF UTILISATION**                                 |     |
| 12.        | Interest                                                 | 55       |
| 13.        | Interest Periods                                         | 57       |
| 14.        | Changes to the calculation  of interest                  | 58       |
| 15.        | Fees                                                     | 59       |
|       |                                                     |     |
|       | **SECTION 6**                                       |     |
|       | **ADDITIONAL PAYMENT OBLIGATIONS**                       |     |
| 16.        | Tax gross up and  indemnities                            | 61       |
| 17.        | Increased costs                                          | 65       |
| 18.        | Other indemnities                                        | 66       |
| 19.        | Mitigation by the Lenders                                | 67       |
| 20.        | Costs and expenses                                       | 67       |
|       |                                                     |     |
|       | **SECTION 7**                                       |     |
|       | **guarantee**                                            |     |
| 21.        | Guarantee and indemnity                                  | 69       |
|       |                                                     |     |
|       | **SECTION 8**                                       |     |
|       | **REPRESENTATIONS, UNDERTAKINGS AND  EVENTS OF DEFAULT** |     |
| 22.        | Representations                                          | 75       |
| 23.        | Information undertakings                                 | 79       |
| 24.        | Financial covenants                                      | 82       |
| 25.        | General undertakings                                     | 88       |
| 26.        | Events of Default                                        | 93       |
|            |                                                          |          |  |

 

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|                                                | **SECTION 9**                                      |     |
|-----------------------------------------------------|---------------------------------------------------------|----------|
|                                                | **CHANGES TO PARTIES**                                  |     |
| 27.                                                 | Changes to the Lenders                                  | 98       |
| 28.                                                 | Changes to the Obligors                                 | 101      |
|                                                |                                                    |     |
|                                                | **SECTION 10**                                     |     |
|                                                | **THE FINANCE PARTIES**                                 |     |
| 29.                                                 | Role of the Agent, the  Security Agent and the Arranger | 105      |
| 30.                                                 | Parallel Debt                                           | 110      |
| 31.                                                 | Conduct of business by the  Finance Parties             | 111      |
| 32.                                                 | Sharing among the Finance  Parties                      | 111      |
|                                                |                                                    |     |
|                                                | **SECTION 11**                                     |     |
|                                                | **ADMINISTRATION**                                      |     |
| 33.                                                 | Payment mechanics                                       | 114      |
| 34.                                                 | Set-off                                                 | 117      |
| 35.                                                 | Notices                                                 | 117      |
| 36.                                                 | Calculations and  certificates                          | 119      |
| 37.                                                 | Partial invalidity                                      | 119      |
| 38.                                                 | Remedies and waivers                                    | 119      |
| 39.                                                 | Amendments and waivers                                  | 119      |
| 40.                                                 | Counterparts                                            | 120      |
|                                                |                                                    |     |
|                                                | **SECTION 12**                                     |     |
|                                                | **GOVERNING LAW AND ENFORCEMENT**                       |     |
| 41.                                                 | Governing law                                           | 121      |
| 42.                                                 | Enforcement                                             | 121      |
|                                                |                                                    |     |
|                                                | **THE SCHEDULES**                                       |     |
|                                                | ** **                                              |     |
| **SCHEDULE**                                        |                                                    | **PAGE** |
| ** **                                          |                                                    |     |
| **Schedule 1** The Original Parties                 |                                                    | 122      |
| **Schedule 2** Conditions precedent                 |                                                    | 124      |
| **Schedule 3** Requests                             |                                                    | 129      |
| **Schedule 4** Mandatory Cost formulae              |                                                    | 133      |
| **Schedule 5** Form of Transfer  Certificate   |                                                    | 136      |
| **Schedule 6** Form of Accession  Letter       |                                                    | 138      |
| **Schedule 7** Security Agency  Provisions          |                                                    | 139      |
| **Schedule 8** Form of Compliance  Certificate |                                                    | 144      |
| **Schedule 9** Existing Security                    |                                                    | 146      |
| **Schedule 10** Timetables                          |                                                    | 148      |
| **Schedule 11** Form of Letter of  Credit      |                                                    | 151      |
| **Schedule 12** Form of Bank  Guarantee        |                                                    | 155      |
| **Schedule 13** Form of Resignation  Letter    |                                                    | 158      |
|                                                     |                                                         |          |  |

 

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THISAGREEMENT is dated 17 June 2008 and made between:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

ITIS AGREED as follows:

 

**SECTION ****1**

 

**INTERPRETATION**

 

1.                                 **Definitions andinterpretation**

 

1.1                           **Definitions**

 

Inthis Agreement:

 

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

 

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

 

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

 

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

 

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

 

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“**Additional Obligor**” means an AdditionalBorrower or an Additional Guarantor.

 

“**Affiliate**” means, in relation to anyperson, a Subsidiary of that person or a Holding Company of that person or anyother Subsidiary of that Holding Company.

 

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

 

“**Ancillary Commitment**” means, in relation toan Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amountfrom time to time agreed (whether or not subject to satisfaction of conditionsprecedent and whether or not utilised) to be made available by that AncillaryLender under an Ancillary Facility and authorised under Clause 9 (*Ancillary Facilities*), to the extent notcancelled or reduced under this Agreement.

 

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

 

“**Ancillary Facility Document**” means adocument setting out the terms of an Ancillary Facility.

 

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

 

“**Ancillary Lender**” means a Lender whichagrees to make available an Ancillary Facility in accordance with Clause 9 (*Ancillary Facilities*).

 

“**Ancillary Outstandings**” means, at any timeand in relation to an Ancillary Facility, the aggregate (calculated in the BaseCurrency) of the following amounts outstanding at that time under thatAncillary Facility:

 

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

 

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

 

ineach case determined by the relevant Ancillary Lender in accordance with itsusual practice at that time for calculating its exposure under similarfacilities or transactions (acting reasonably and after consultation with theAgent).

 

Forthe purposes of this definition:

 

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

 

(ii)                                   in relation to any utilisation not denominated in theBase Currency, the equivalent (calculated as specified in the relevantAncillary Facility Document or, if not so specified, as the relevant AncillaryLender may specify, in each case in accordance with its usual practice at thattime for calculating that equivalent (acting reasonably and after consultationwith the Agent)) in the Base Currency of the amount of that utilisation(determined as described in paragraphs (a) and (b) above) shall beused.

 

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

 

“**Applicable Accounting Principles**” meansGAAP and, in the case of the Company, practices and financial reference periodsused in the preparation of the Base Case.

 

“**Authorisation**” means an authorisation,consent, approval, resolution, licence, exemption, filing, notarisation orregistration.

 

“**Availability Period**” means:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

otherthan, in relation to any proposed Utilisation under Facility B only, thatLender’s participation in any Facility B Utilisations that are due to be repaidor prepaid on or before the proposed Utilisation Date.

 

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

 

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

 

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

 

“**Base Currency**” or “€” means euros.

 

“**Base Currency Amount**” means:

 

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(a)                                   in relation to a Utilisation, the amount specified inthe Utilisation Request delivered by a Borrower for that Utilisation (or, ifthe amount requested is not denominated in the Base Currency, that amountconverted into the Base Currency at the Agent’s Spot Rate of Exchange on thedate which is three Business Days before the Utilisation Date or, if later, onthe date the Agent receives the Utilisation Request and, in the case of aLetter of Credit or Bank Guarantee, as adjusted under Clause 6.8 (*Revaluation of Letters of Credit and Bank Guarantees*));

 

(b)                                  in relation to an Ancillary Commitment, the amountspecified in the notice delivered to the Agent by the Company pursuant toparagraph (a) of Clause 9.3 (*Requestfor Ancillary Facilities*),

 

adjustedto reflect any repayment, prepayment, consolidation or division of theUtilisation or (as the case may be) cancellation or reduction of the AncillaryCommitment.

 

“**Borrower**” means an Original Borrower or anAdditional Borrower.

 

“**Break Costs**” means the amount (if any) bywhich:

 

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

 

exceeds:

 

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

 

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

 

“**Capital Expenditure**” has the meaning givento it in Clause 24 (*Financial covenants*).

 

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

 

(a)                                   freely withdrawable on demand;

 

(b)                                  not subject to any Security or Quasi Security (otherthan pursuant to any Security Document or any Permitted Security constituted byeither a netting or set-off arrangement entered into by members of the Group inthe ordinary course of their banking arrangements or a lien arising under thegeneral terms and conditions of banks or Sparkassen (*Allgemeine Geschäftsbedingungen der Banken oder Sparkassen*)with whom any member of the Group maintains its banking arrangements);

 

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

 

(d)                                  capable of being remitted to an Obligor.

 

“**Cash Equivalent Investments**” means:

 

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

 

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

 

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

 

ineach case not subject to any Security or Quasi Security (other than pursuant toany Security Document or any Permitted Security constituted by a lien arisingunder the general terms and conditions of banks or Sparkassen (*Allgemeine Geschäftsbedingungen der Banken oderSparkassen*) with whom any member of the Group maintains its bankingarrangements), denominated and payable in freely transferable and freelyconvertible currency and the proceeds of which are capable of being remitted toan Obligor.

 

“**Cash Generated for Financing**” has themeaning given to it in Clause 24 (*Financialcovenants*).

 

“**Clean Down Period**” has the meaning given toit in Clause 11.15 (*Clean Down*).

 

“**Commencement Date**” has the meaning given toit in Clause 9.3 (*Request for AncillaryFacilities*).

 

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

 

“**Compliance Certificate**” means a certificatesubstantially in the form set out in Schedule 8 (*Form of Compliance Certificate*).

 

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

 

“**Current Assets**” means has the meaning givento it in Clause 24 (*Financial covenants*).

 

“**Current Liabilities**” means has the meaninggiven to it in Clause 24 (*Financialcovenants*).

 

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

 

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

 

“**Default**” means an Event of Default or anyevent or circumstance specified in Clause 26 (*Eventsof Default*) which would (with the expiry of a grace period, the givingof notice, the 

 

5

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makingof any determination under the Finance Documents or any combination of any ofthe foregoing) be an Event of Default.

 

“**Disruption Event**” means either or both of:

 

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

 

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

 

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

 

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

 

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

 

“**EBITDA**” has the meaning given to it inClause 24 (*Financial covenants*).

 

“**Environment**” means living organismsincluding the ecological systems of which they form part and the followingmedia:

 

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

 

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

 

(c)                                   land (including land under water).

 

“**Environmental Law**” means all laws and regulations of anyrelevant jurisdiction which:

 

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

 

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

 

(c)                                   relate to Hazardous Substances or health and safetymatters.

 

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

 

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

 

(a)                                   the applicable Screen Rate; or

 

(b)                                  (if no Screen Rate is available for the InterestPeriod of that Loan) the arithmetic mean of the rates (rounded upwards to fourdecimal places) as supplied to the Agent at its request quoted by the ReferenceBanks to leading banks in the European interbank market,

 

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

 

“**Event of Default**” means any event orcircumstance specified as such in Clause 26 (*Eventsof Default*).

 

“**Exceptional Items**” has the meaning given toit in Clause 24 (*Financial covenants*).

 

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

 

“**Facility**” means Facility A or Facility B.

 

“**Facility****A**”means the term loan facility made available under this Agreement as describedin Clause 2 (*The**Facilities*).

 

“**Facility A Commitment**” means:

 

(a)                                   in relation to an Original Lender, the amount in theBase Currency set opposite its name under the heading “Facility A Commitment”in Part II of Schedule 1 (*The Original**Parties*) and the amount of anyother Facility A Commitment transferred to it under this Agreement; and

 

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

 

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

 

“**Facility A Loan**” means a loan made or to bemade under Facility A or the principal amount outstanding for the time being ofthat loan.

 

“**Facility****ARepayment Date**” means each date specified in Clause 10.1 (*Repayment of Facility A Loans*) for thepayment of a Repayment Instalment.

 

“**Facility****B**”means the revolving credit facility made available under this Agreement asdescribed in Clause 2 (*The**Facilities*), part of which may bedesignated as Ancillary Facilities in accordance with Clause 9 (*Ancillary Facilities*).

 

“**Facility B Commitment**” means:

 

(a)                                   in relation to an Original Lender, the amount in theBase Currency set opposite its name under the heading “Facility B Commitment”in Part II of Schedule 1 (*The Original**Parties*) and the amount of anyother Facility B Commitment transferred to it under this Agreement; and

 

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

 

tothe extent not cancelled, reduced or transferred by it under this Agreement(including a reduction pursuant to Clause 9 (*AncillaryFacilities*)).

 

“**Facility B Loan**” means a loan made or to bemade under Facility B or the principal amount outstanding for the time being ofthat loan.

 

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

 

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

 

“**Fee Letter**” means any letter or lettersdated on or about the date of this Agreement between, as the case may be, theArranger and the Company, the Agent and the Company, the Security Agent and theCompany or the Issuing Bank and the Company setting out any of the feesreferred to in Clause 15 (*Fees*).

 

“**Finance Document**” means this Agreement, theSubordination Agreement, any Fee Letter, any Accession Letter, any SecurityDocument, any Ancillary Facility Document and any other document designated assuch by the Agent and the Company.

 

“**Finance Lease**” means any lease or hirepurchase contract which would, in accordance with IFRS, be treated as a financeor capital lease.

 

“**Finance Party**” means the Agent, anAncillary Lender, the Security Agent, the Arranger, the Issuing Bank or aLender.

 

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

 

(a)                                   moneys borrowed;

 

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

 

(c)                                   any amount raised pursuant to any note purchasefacility or the issue of bonds, notes, debentures, loan stock or any similarinstrument;

 

(d)                                  the amount of any liability in respect of any FinanceLease;

 

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

 

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

 

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

 

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

 

(i)                                      any counter-indemnity obligation in respect of aguarantee, indemnity, bond, standby or documentary letter of credit or anyother instrument issued by a bank or financial institution in respect of anunderlying liability of an entity which is not a member of the Group which liabilitywould fall within one of the other paragraphs of this definition; and

 

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

 

“**Financial Quarter**” means the periodcommencing on the day after one Quarter Date and ending on the next QuarterDate.

 

“**Financial Year**” has the meaning given to itin Clause 24 (*Financial covenants*).

 

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

 

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

 

(a)                                   share pledge agreement over the shares in FinnishHoldco;

 

(b)                                  share pledge agreement over the shares in KemiraPigments;

 

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

 

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

 

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

 

“**Floating Charge**” means floating charge (*Fi: yrityskiinnitys*) registered on movableproperty in accordance with the Finnish Act on Floating Charge (*Fi: yrityskiinnityslaki*, 1984/634 asamended).

 

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

 

“**GAAP**” means generally accepted accountingprinciples, standards and practices in the jurisdiction of incorporation of therelevant member of the Group, including IFRS.

 

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

 

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

 

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

 

(c)                                   the share pledge agreement over the shares inSachtleben Chemie;

 

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

 

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

 

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

 

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

 

“**Group**” means:

 

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

 

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

 

“**Guarantor**” means an Original Guarantor oran Additional Guarantor.

 

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

 

“**Hedging Letter**” means a letter dated on orabout the date of this Agreement between the Arranger and the Company settingout the hedging strategy agreed in relation to Facility A.

 

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

 

“**IFRS**” means international accountingstandards within the meaning of the IAS Regulation 1606/2002 to the extentapplicable to the relevant financial statements.

 

“**Information Memorandum**” means the documentin the form approved by the Company concerning the Group which, at the Company’srequest and on its behalf, was prepared in relation to this transaction anddistributed by the Arranger to selected financial institutions before the dateof this Agreement.

 

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

 

“**Interest Expenses**” has the meaning given toit in Clause 24 (*Financial covenants*).

 

“**Interest Period**” means, in relation to aLoan, each period determined in accordance with Clause 13 (*Interest Periods*) and, in relation to anUnpaid Sum, each period determined in accordance with Clause 12.3 (*Default interest*).

 

“**Issuing Bank**” means Merchant Banking,Skandinaviska Enskilda Banken AB (publ) and any Lender which has notified theAgent that it has agreed to the Company’s request to be an Issuing Bankpursuant to the terms of this Agreement (and if more than one Lender has soagreed, such Lenders and Merchant Banking, Skandinaviska Enskilda Banken AB(publ) shall be referred to, whether acting individually or together, as the “**Issuing Bank**”) **provided that**, in respect of a Letter of Credit or BankGuarantee issued or to be issued pursuant to the terms of this Agreement, the “**Issuing Bank**” shall be the Issuing Bankwhich has issued or agreed to issue that Letter of Credit or Bank Guarantee.

 

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

 

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

 

“**JV Document**” means:

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Kemira Pledge**” means the pledge over realestate granted by Kemira Pigments in favour of Neliapila Pension Fund securinga principal amount of Financial Indebtedness equal to €31,262,648.78 includingbut not limited to the mortgages set out in more detail in Part II ofSchedule 9 (*Kemira Pledge*).

 

“**KPMG****FinancialDue Diligence Report**” means the report prepared by KPMG OY AB in theAgreed Form.

 

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

 

“**Legal Opinion**” means any legal opiniondelivered to the Agent under Clause 4 (*Conditionsof Utilisation*) or Clause 28 (*Changesto the Obligors*)*.*

 

“**Legal Reservations**” means:

 

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

 

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

 

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

 

(d)                                  any other matters which are set out as qualificationsor reservations as to matters of law of general application in the LegalOpinions.

 

“**Lender**” means:

 

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(a)                                   any Original Lender; and

 

(b)                                  any bank, financial institution, trust, fund or otherentity which has become a Party in accordance with Clause 27 (*Changes to the Lenders*),

 

whichin each case has not ceased to be a Party in accordance with the terms of thisAgreement.

 

“**Letter of Credit**” means a letter of credit,substantially in the form set out in Schedule 11 (*Form of Letter of Credit*) or in any other formrequested by a Borrower and agreed by the Agent and the Issuing Bank.

 

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

 

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

 

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

 

(a)                                   the applicable Screen Rate; or

 

(b)                                  (if no Screen Rate is available for the currency orInterest Period of that Loan) the arithmetic mean of the rates (rounded upwardsto four decimal places) as supplied to the Agent at its request quoted by theReference Banks to leading banks in the London interbank market, as of theSpecified Time on the Quotation Day for the offering of deposits in thecurrency of that Loan and for a period comparable to the Interest Period forthat Loan.

 

“**LMA**” means the Loan Market Association.

 

“**Loan**” means a Facility A Loan or a FacilityB Loan.

 

“**Majority Lenders**” means:

 

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

 

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

 

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

 

“**Mandatory Cost**” means the percentage rateper annum calculated by the Agent in accordance with Schedule 4 (*Mandatory Cost**formulae*).

 

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

 

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

 

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

 

(b)                                  the ability of any Obligor to perform and comply withits payment obligations under any Finance Document or its obligations underClause 24.1 (*Financial condition*);

 

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

 

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

 

“**Material Subsidiary**” means:

 

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

 

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

 

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

 

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

 

Forthe purposes of this definition:

 

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

 

(ii)                                   if a Subsidiary is acquired by any member of the Groupafter the end of the financial period to which the latest audited consolidatedfinancial statements of the Group relate, those financial statements shall beadjusted as if that Subsidiary had been shown in them by reference to its thenlatest audited financial statements until audited consolidated financialstatements of the Group for the financial period in which the acquisition ismade have been prepared.

 

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

 

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

 

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

 

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

 

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

 

“**Net Interest Expenses**” has the meaninggiven to it in Clause 24 (*Financialcovenants*).

 

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

 

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

 

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

 

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

 

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

 

“**Non-Group Entity**” has the meaning given toit in Clause 24 (*Financial covenants*).

 

“**Obligor**” means a Borrower or a Guarantor.

 

“**Optional Currency**” means a currency (otherthan the Base Currency) which complies with the conditions set out in Clause4.3 (*Conditions relating to OptionalCurrencies*).

 

“**Original Financial Statements**” means:

 

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

 

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

 

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

 

“**Original Obligor**” means an OriginalBorrower or an Original Guarantor.

 

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

 

“**Participating Member State**” means anymember state of the European Communities that adopts or has adopted the euro asits lawful currency in accordance with legislation of the European Communityrelating to Economic and Monetary Union.

 

“**Party**” means a party to this Agreement.

 

“**Pension Items**” has the meaning given to itin Clause 24 (*Financial covenants*).

 

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“**Perfection Requirements**” means the makingof the appropriate registrations, filings or notifications of or pursuant tothe Security Documents.

 

“**Permitted Acquisition**” means:

 

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

 

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

 

(c)                                   the acquisition by a member of the Group of CashEquivalent Investments provided that that member of the Group creates Securityover those Cash Equivalent Investments under a Security Document to the extentnecessary to ensure that the Finance Parties will enjoy the same or equivalentSecurity over those assets as that provided over assets by the acquiringObligor or other Obligors incorporated in its jurisdiction of incorporation; or

 

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

 

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

 

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

 

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

 

(iv)                           until the date of delivery of a Compliance Certificateshowing that the ratio of Net Debt (excluding the amount of any proceeds of anynew equity or Financial Indebtedness subordinated to the Facilities on termsacceptable to the Majority Lenders (acting reasonably) received by a member ofthe Group from a person which is not a member of the Group and which issubsequently used to fund any such acquisition (or associated costs andexpenses) or to refinance Financial Indebtedness remaining in any such acquiredcompanies or businesses) on any Quarter Date to EBITDA for the Relevant Periodending on that Quarter Date does not exceed 2.50:1.00:

 

(A)                            the total consideration (including associated costsand expenses) for that acquisition (and any Financial Indebtedness remaining inthe acquired company or business at the date of acquisition) when aggregatedwith the consideration (including associated costs and expenses) for any otheracquisition permitted under this paragraph (d) (and any FinancialIndebtedness remaining in any such acquired companies or businesses at the dateof acquisition) less the proceeds of any new equity or Financial Indebtednesssubordinated to the Facilities on terms acceptable 

 

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to the Majority Lenders (acting reasonably)received by a member of the Group from a person which is not a member of theGroup and used to fund any such acquisition (or associated costs and expenses)or to refinance Financial Indebtedness remaining in any such acquired companiesor business does not in any financial year of the Company exceed €10,000,000(or its equivalent in another currency or currencies); and

 

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

 

(v)                              to the extent that the acquired company wouldconstitute a Material Subsidiary or be required to become a Guarantor to ensurethat the Company complies with its obligations under Clause 25.22 (*Guarantees and Security*) based oncalculations for the Relevant Period referred to in paragraph (vi) belowif the relevant tests were recalculated (A) consolidating the financialstatements of the company to be acquired (consolidated if that company hasSubsidiaries) for that Relevant Period with those of the Group on a pro formabasis and (B) as if the consideration for the proposed acquisition hadbeen paid at the start of that Relevant Period, and to the extent lawful, validand effective Security, in form and substance satisfactory to the SecurityAgent, is given in favour of the Security Agent for the benefit of the FinanceParties over all the shares and material assets of the acquired company upon orimmediately following its acquisition;

 

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

 

(A)                            it would have complied with the requirements ofparagraphs (a) and (b) of Clause 24.1 (*Financial condition*) for the Relevant Period ending on thelast Quarter Date for which financial statements are available falling beforethat certificate is given, if the covenant tests for that Relevant Period were recalculated(i) consolidating the financial statements of the company or business tobe acquired (consolidated if that company has Subsidiaries) for that RelevantPeriod with those of the Group on a pro forma basis and taking into accountreasonable synergies as confirmed by the Company’s auditors (ii) as if theconsideration for the proposed acquisition had been paid at the start of thatRelevant Period; and

 

(B)                            the company or business to be acquired had positiveEBITDA for the twelve month period to which its latest management accountsrelate; and

 

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

 

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

 

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

 

(e)                                   an acquisition of shares or securities permittedpursuant to Clause 25.23 (*Issue of shares*);and

 

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

 

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

 

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

 

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

 

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

 

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

 

(e)                                   of assets to a Permitted Joint Venture;

 

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

 

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

 

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

 

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

 

(j)                                     of assets by a member of the Group which is not anObligor to an Obligor provided that the Security Agent, acting reasonably, issatisfied that the Finance Parties will enjoy the same or equivalent Securityover those assets as that provided over assets of that type by the acquiringObligor or other Obligors incorporated in its jurisdiction of incorporation andprovided further that such sale, lease, transfer or disposal is on terms notless advantageous to the relevant Obligor than arm’s length terms;

 

(k)                                  of assets by an Obligor to another member of the Groupwhich is not an Obligor provided that the aggregate of the consideration forsuch assets does not, in any 

 

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

 

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

 

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

 

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

 

“**Permitted Financial Indebtedness**” means:

 

(a)                                  any Financial Indebtedness arising under any FinanceDocument;

 

(b)                                  any Financial Indebtedness owed to the Owners, whichfrom the date of the first Utilisation of Facility A is subordinated under theSubordination Agreement (including Financial Indebtedness arising pursuant toany Shareholder Loan) or which is otherwise subordinated on terms acceptable tothe Majority Lenders (acting reasonably);

 

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

 

(d)                                  any Financial Indebtedness arising under a PermittedJoint Venture;

 

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

 

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

 

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

 

(h)                                  any Financial Indebtedness arising under a PermittedHedging Transaction;

 

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

 

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

 

(k)                                  the Reborrowing Loan;

 

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

 

(m)                              any Financial Indebtedness not falling withinparagraphs (a) to (l) above, the aggregate outstanding principalamount of which across the Group does not at any time exceed €4,000,000 (or itsequivalent in another currency or currencies).

 

“**Permitted Guarantee**” means:

 

(a)                                  any guarantee arising under any Finance Document;

 

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

 

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

 

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

 

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

 

(f)                                    any guarantee issued by a member of the Group which isnot an Obligor in respect of the obligations or liabilities of an Obligor(including any guarantee in respect of a netting or set-off arrangement enteredinto by that member of the Group in the ordinary course of its bankingarrangements for the purpose of netting debit and credit balances of members ofthe Group);

 

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

 

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

 

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

 

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

 

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

 

(l)                                      any guarantee issued by a person acquired by a memberof the Group after the date of this Agreement which is issued underarrangements in existence at the date of acquisition but not issued or itsmaturity date extended in contemplation of, or since, that acquisition, andoutstanding only for a period of three months following the date ofacquisition;

 

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

 

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

 

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

 

“**Permitted Hedging Transaction**” means:

 

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

 

(b)                                  interest rate hedging agreements and spot and forwarddelivery foreign exchange contracts entered into in the ordinary course ofbusiness and not for speculative purposes; and

 

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

 

“**Permitted Joint Venture**” means a JointVenture where:

 

(a)                                  no Event of Default is continuing on the date of theacquisition of, or investment in, or transfer or loan to, or the granting ofany guarantee, Security or Quasi Security for the obligations of, or theincurring of any other liability to, the Joint Venture or would occur as aresult of the acquisition of or investment in, or transfer or loan to, orguarantee, Security or Quasi Security for the obligations of, or the incurringof any other liability to, the Joint Venture;

 

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

 

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

 

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(d)                                  the amount that any member of the Group invests in orpays to acquire any share or interest in, or the value of the assets that anymember of the Group transfers or lends to, or the actual or contingentliability of any member of the Group under any guarantee, Security or QuasiSecurity for the obligations of, or any liability (whether actual or contingentand whether present or future) of any member of the Group in respect of, theJoint Venture, does not in any financial year of the Company exceed inaggregate €2,000,000 (or its equivalent in another currency or currencies).

 

“**Permitted Loan**” means:

 

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

 

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

 

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

 

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

 

(e)                                   a loan, credit or other arrangement having a similareffect made by a member of the Group which is not an Obligor to an Obligor ifthat member of the Group has entered into a subordination agreement in form andsubstance satisfactory to the Agent;

 

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

 

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

 

(h)                                  a loan, credit or other arrangement having a similareffect made by a member of the Group to an employee or director of any memberof the Group if the amount of that loan, when aggregated with the amount of allloans to employees and directors by members of the Group, does not at any timeexceed €1,000,000 (or its equivalent in another currency or currencies);

 

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

 

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(j)                                     a loan, credit or other arrangement having a similareffect made by a member of the Group which is not an Obligor to an Obligor ifthat member of the Group has acceded to the Subordination Agreement;

 

(k)                                  the US JV Loan; or

 

(l)                                      any loan, credit or other arrangement having a similareffect not falling within paragraphs (a) to (k), the aggregate principalamount of which at any time does not, when aggregated with the aggregateprincipal amount of the Financial Indebtedness under any such loans and theaggregate liability (whether actual or contingent) under any guarantees at thattime which are permitted under paragraph (o) of the definition ofPermitted Guarantee, exceed €2,000,000 (or its equivalent in another currencyor currencies).

 

“**Permitted Security**” means:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(g)                                   any Security or Quasi Security arising under anyFinance Lease and provided that the Financial Indebtedness secured thereby ispermitted under paragraph (g) of the definition of Permitted FinancialIndebtedness;

 

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

 

(i)                                      any netting or set-off arrangement entered into by amember of the Group in the ordinary course of its banking arrangements for thepurpose of netting debit and credit balances of members of the Group, providedthat (1) the arrangement only permits credit balances of Obligors to benetted or set off against debit balances of members of the Group which are notObligors to the extent that the aggregate amount of credit balances availablefor set-off at any time does not, when aggregated with the amount of any loansoutstanding at that time which are permitted under paragraph (c) of thedefinition of Permitted Loan, exceed €3,000,000 (or its equivalent in anothercurrency or currencies); and (2) if the arrangement gives rise to otherSecurity or Quasi Security over the assets of Obligors in support ofliabilities of members of the Group which are not Obligors, the aggregateamount of those liabilities at any time, when aggregated with the amounts inparagraph (1) above, does not exceed €2,000,000 (or its equivalent inanother currency or currencies);

 

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

 

(k)                                  any lien arising under the general terms andconditions of banks or Sparkassen (*AllgemeineGeschäftsbedingungen der Banken oder Sparkassen*) with whom anymember of the Group maintains its banking arrangements;

 

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

 

(m)                              any Security or Quasi Security, securing indebtednessthe principal amount of which (when aggregated with the principal amount of anyother indebtedness which has the benefit of Security or Quasi Security given byany member of the Group other than any permitted under paragraphs (a) to (l) above)does not at any time exceed €2,000,000 (or its equivalent in another currencyor currencies).

 

“**Permitted Transaction**” means:

 

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

 

(b)                                  the solvent liquidation or reorganisation of anymember of the Group which is not an Obligor so long as any payments or assetsdistributed as a result of such liquidation or reorganisation are distributedto other members of the Group; or

 

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

 

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

 

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

 

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

 

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

 

“**PwC Financial Due Diligence Report**” meansthe report prepared by PricewaterhouseCoopers AktiengesellschaftWirtschaftsprüfungsgesellschaft in the Agreed Form.

 

“**Qualifying Lender**” has the meaning given toit in Clause 16 (*Tax gross-up andindemnities*).

 

“**Quarter Date**” means each of 31 December, 31 March, 30 June and30 September.

 

“**Quasi Security**” means a transaction underwhich any member of the Group will:

 

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

 

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

 

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

 

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

 

incircumstances where the arrangement or transaction is entered into primarily asa method of raising Financial Indebtedness or of financing the acquisition ofan asset.

 

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

 

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

 

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

 

unlessmarket practice differs in the Relevant Interbank Market for a currency, inwhich case the Quotation Day for that currency will be determined by the Agentin accordance with market practice in the Relevant Interbank Market (and ifquotations for that currency and period would normally be given by leadingbanks in the Relevant Interbank Market on more than one day, the Quotation Daywill be the last of those days).

 

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

 

“**Reference Banks**” means, in relation toLIBOR and EURIBOR and Mandatory Cost, the principal London offices of MerchantBanking, Skandinaviska Enskilda Banken AB (publ) and 

 

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NordeaBank Finland Plc or such other banks as may be appointed by the Agent inconsultation with the Company.

 

“**Relevant Interbank Market**” means, inrelation to euro, the European interbank marketand, in relation to any other currency, the Londoninterbank market.

 

“**Relevant Jurisdiction**” means, in relationto an Obligor:

 

(a)                                      its jurisdiction of incorporation;

 

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

 

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

 

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

 

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

 

“**Repayment Instalment**” means each instalmentfor repayment of the Facility A Loan specified in Clause 10.1 (*Repayment**of**Facility A Loans*).

 

“**Repeating Representations**” means each ofthe representations set out in Clauses 22.1 (*Status*),22.2 (*Binding obligations*), 22.3(*Non-conflict with other obligations*),22.4 (*Power and authority*), 22.5(*Validity**and admissibility in evidence*), 22.6 (*Governing law and enforcement*), 22.9 (*No default*), and paragraph (c) of22.11 (*Financial statements*).

 

“**Resignation Letter**” means a lettersubstantially in the form set out in Schedule 13 (*Form of Resignation Lette*r).

 

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

 

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

 

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

 

(c)                                   in the same currency as (i) the maturing FacilityB Loan (unless it arose as a result of the operation of Clause 8.2 (*Unavailability of a currency*)) or (ii) theclaim under the Letter of Credit or Bank Guarantee; and

 

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

 

“**Sachtleben Chemie**” means Sachtleben ChemieGmbH, a limited liability company incorporated under the laws of Germany (*Gesellschaft mit beschränkter Haftung*) andregistered with the commercial register (*Handelsregister*)of the local court (*Amtsgericht*)of Duisburg under the registration number HR B 1 96 69.

 

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“**Screen Rate**” means:

 

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

 

(b)                                  in relation to EURIBOR, the percentage rate per annumdetermined by the Banking Federation of the European Union for the relevantperiod,

 

displayedon the appropriate page of the Reuters screen. If the agreed page isreplaced or service ceases to be available, the Agent may specify another page orservice displaying the appropriate rate after consultation with the Company andthe Lenders.

 

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

 

“**Security Document**” means the FinnishSecurity Documents, the German Security Document and any other securitydocument that may at any time be entered into by any member of the Group assecurity for any of the Liabilities pursuant to or in connection with anyFinance Document.

 

“**Security Property**” has the meaning given toit in Schedule 7 (*Security agency provisions*).

 

“**Selection Notice**” means a noticesubstantially in the form set out in Part II of Schedule 3 (*Requests*) given in accordance with Clause13 (*Interest Periods*) in relationto Facility A.

 

“**Shareholder Loan**” means:

 

(a)                                   a loan made available pursuant to an agreement dated28 April 2005 (as amended) between Rockwood Specialities Group GmbH aslender and Knight Dritte Beteiligungs - GmbH (now Sachtleben Chemie) asborrower relating to a loan in an amount of €16,229,175.47;

 

(b)                                  a loan made available pursuant to an agreement dated30 July 2004 (as amended) between Knight Erste Beteiligungs - GmbH (nowRockwood Specialities Group GmbH) as lender and Knight Dritte Beteilingungs -GmbH (now Sachtleben Chemie) as borrower relating to a loan in an amount of€266,300,000;

 

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

 

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

 

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

 

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

 

“**Specified Time**” means a time determined inaccordance with Schedule 10 (*Timetables*).

 

“**Structuring Report**” means the draft reportentitled “Project David Outline Structuring Steps — Working Draft” prepared byDeloitte & Touche GmbH Wirtschaftsprüfungsgesellschaft in the AgreedForm.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Syndication**” means general syndication ofthe Facilities.

 

“**Syndication Date**” means the date (asdetermined by the Arranger and notified to the Company) on which primarysyndication of the Facilities has been completed and the additional syndicatemembers have become bound by this Agreement.

 

“**TARGET2**” means the Trans-European AutomatedReal-time Gross Settlement Express Transfer payment system which utilises asingle shared platform and which was launched on 19 November 2007.

 

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

 

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

 

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

 

“**Ti02 Joint Venture**” means the joint ventureof the Owners pursuant to the JV Documents.

 

“**Total Ancillary Commitments**” means theaggregate of the Ancillary Commitments, being zero at the date of thisAgreement.

 

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

 

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

 

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“**Total Facility A Commitments**” means theaggregate of the Facility A Commitments, being €300,000,000 at the date of thisAgreement.

 

“**Total Facility B Commitments**” means theaggregate of the Facility B Commitments, being €30,000,000 at the date of thisAgreement.

 

“**Transfer Certificate**” means a certificatesubstantially in the form set out in Schedule 5 (*Form of Transfer Certificate*) or any other form agreedbetween the Agent and the Company.

 

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

 

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

 

(b)                                  the date on which the Agent executes the TransferCertificate.

 

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

 

“**US JV Loan**” means:

 

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

 

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

 

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

 

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

 

“**Utilisation Request**” means a noticesubstantially in the form set out in Part I, or (in relation to a letterof credit or bank guarantee) a notice substantially in the form set out in Part IIIof Schedule 3 (*Requests*).

 

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

 

“**Working Capital**” has the meaning given toit in Clause 24 (*Financial covenants*).

 

1.2                           **Construction**

 

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

 

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

 

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

 

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

 

(A)                           a Borrower paying an amount in the currency of theLetter of Credit or Bank Guarantee or, as the case may be, contingent liabilityunder the Ancillary Facility 

 

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to an interest-bearingaccount in the name of the Borrower and the following conditions are met:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

1.3                           **Third Party Rights**

 

Aperson who is not a Party has no right under the Contracts (Rights of ThirdParties) Act 1999 to enforce or to enjoy the benefit of any term of thisAgreement.

 

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**SECTION ****2**

 

**TheFacilities**

 

2.                                 **The Facilities**

 

2.1                           **The Facilities**

 

Subject to the terms of thisAgreement, the Lenders make available to the Borrowers:

 

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

 

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

 

2.2                           **Finance Parties’ rights andobligations**

 

(a)                            The obligations of each Finance Party under theFinance Documents are several.  Failureby a Finance Party to perform its obligations under the Finance Documents doesnot affect the obligations of any other Party under the Finance Documents.  No Finance Party is responsible for theobligations of any other Finance Party under the Finance Documents.

 

(b)                           The rights of each Finance Party under or inconnection with the Finance Documents are separate and independent rights andany debt arising under the Finance Documents to a Finance Party from an Obligorshall be a separate and independent debt.

 

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

 

3.                                 **Purpose**

 

3.1                           **Purpose**

 

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

 

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

 

3.2                           **Monitoring**

 

NoFinance Party is bound to monitor or verify the application of any amountborrowed pursuant to this Agreement.

 

4.                                 **Conditions of Utilisation**

 

4.1                           **Initial conditions precedent**

 

NoBorrower may deliver a Utilisation Request unless the Agent has received all ofthe documents and other evidence listed in Part I of Schedule 2 (*Conditions precedent*) in form and 

 

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substancesatisfactory to the Agent. The Agent shall notify the Company and the Lenderspromptly upon being so satisfied.

 

4.2                           **Further conditions precedent**

 

(a)                            The Lenders will only be obliged to comply with Clause5.4 (*Lenders’ participation*) ifon the date of the Utilisation Request and (in relation to sub paragraphs (ii) and(iii) of this         Clause 4.2) on the proposed Utilisation Date:

 

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

 

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

 

(B)                             certifying that the ratio of (i) the aggregate ofNet Debt on the date of that Utilisation Request and the amount of the proposedUtilisation to (ii) EBITDA for the 12 month period ending on the mostrecent month end or, if the Utilisation Request is delivered within 7 BusinessDays of the start of a month, for the 12 month period ending on thenext-to-last month end does not exceed 4.00:1.00, setting out (in reasonabledetail) computations as to compliance with that ratio;

 

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

 

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

 

4.3                           **Conditions relating to OptionalCurrencies**

 

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

 

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

 

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

 

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

 

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

 

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

 

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4.4                           **Maximum number of Utilisations**

 

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

 

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

 

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

 

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

 

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

 

(c)                            Any Loan made by a single Lender under Clause 8.2 (*Unavailability of a currency*) shall not betaken into account in this Clause 4.4.

 

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**SECTION ****3**

** **

**UTILISATION**

** **

5.                                 **Utilisation - Loans**

 

5.1                           **Delivery of a Utilisation Request**

 

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

 

5.2                           **Completion of a Utilisation Request**

 

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

 

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

 

(ii)                                   it identifies the Facility to be utilised;

 

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

 

(iv)                               the currency and amount of the Utilisation comply withClause 5.3 (*Currency and amount*);

 

(v)                                  the proposed Interest Period complies with Clause 13 (*Interest Periods*); and

 

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

 

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

 

5.3                           **Currency and amount**

 

(a)                            The currency specified in a Utilisation Request mustbe the Base Currency or, in relation to Facility B, the Base Currency or anOptional Currency.

 

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

 

(i)                                      if the currency selected is the Base Currency, aminimum of €10,000,000 (and integral multiples thereafter) for Facility A and€5,000,000 (and integral multiples of €1,000,000 thereafter) for Facility B orin either case, if less, the Available Facility;

 

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

 

(iii)                                if the currency selected is any other OptionalCurrency, the minimum amount (and, if required, integral multiple) specified bythe Agent pursuant to paragraph (b)(ii) of Clause 4.3 (*Conditions relating to Optional Currencies*)or, if less, the Available Facility; and

 

(iv)                               in any event such that its Base Currency Amount isless than or equal to the Available Facility.

 

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

 

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| **Borrower**      | ** ** | **Aggregate amount of Facility A Loans (€)** | ** ** |
|-------------------|------------|---------------------------------------------------------------------------------|------------|
| Sachtleben Chemie |       | 183,000,000                                                                     |       |
| Kemira Pigments   |       | 50,000,000                                                                      |       |
| Finnish HoldCo    |       | 67,000,000                                                                      |       |

 

5.4                           **Lenders’ participation**

 

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

 

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

 

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

 

5.5                           **Cancellation of Commitment**

 

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

 

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

 

6.                                 **Utilisation - Letters ofCredit and Bank Guarantees**

 

6.1                           **General**

 

(a)                            In this Clause 6 and Clause 7 (*Letters of Credit and Bank Guarantees*):

 

(i)                                      “**ApprovedBeneficiary**” means a beneficiary of a Letter of Credit or BankGuarantee approved by the Issuing Bank and the Agent;

 

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

 

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

 

(iv)                               “**Renewal Request**”means a written notice delivered to the Agent in accordance with Clause 6.7 (*Renewal of a Letter of Credit or Bank Guarantee*);and

 

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

 

(b)                           Any reference in this Agreement to:

 

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

 

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

 

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

 

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

 

(v)                                  amounts outstanding under this Agreement includeamounts outstanding under or in respect of any Letter of Credit or BankGuarantee;

 

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

 

(c)                            Clause 5 (*Utilisation- Loans*) does not apply to a Utilisation by way of Letter of Creditor Bank Guarantee.

 

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

 

6.2                           **Facility B**

 

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

 

6.3                           **Delivery of a Utilisation Request forLetters of Credit or Bank Guarantees**

 

ABorrower may request a Letter of Credit or Bank Guarantee to be issued bydelivery to the Agent of a duly completed Utilisation Request substantially inthe form of Part III of Schedule 3 (*UtilisationRequest - Letters of Credit and Bank Guarantees*) not later than theSpecified Time.

 

6.4                           **Completion of a Utilisation Requestfor Letters of Credit and Bank Guarantees**

 

EachUtilisation Request for a Letter of Credit or Bank Guarantee is irrevocable andwill not be regarded as having been duly completed unless:

 

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

 

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

 

(c)                                   the currency and amount of the Letter of Credit orBank Guarantee comply with Clause 5.3 (*Currencyand amount*);

 

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

 

(e)                                   the Expiry Date of the Letter of Credit or BankGuarantee falls on or before the date falling three Months after theTermination Date;

 

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

 

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

 

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6.5                           **Currency and amount**

 

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

 

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

 

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

 

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

 

(iii)                                if the currency selected is any other OptionalCurrency, the minimum amount (and, if required, integral multiple) specified bythe Agent pursuant to paragraph (b)(ii) of Clause 4.3 (*Conditions relating to Optional Currencies*)or, if less, the Available Facility,

 

or,if less, such amount as will result in the aggregate Base Currency Amounts ofall outstanding Letters of Credit and all outstanding Bank Guarantees notexceeding the Letter of Credit and Bank Guarantee Limit.

 

6.6                           **Issue of Letters of Credit or BankGuarantees**

 

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

 

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

 

(i)                                      in the case of a Letter of Credit or Bank Guaranteerenewed in accordance with Clause 6.7 (*Renewalof a Letter of Credit or Bank Guarantee*), no Event of Default iscontinuing or would result from the proposed Utilisation and, in the case ofany other Utilisation, no Default is continuing or would result from theproposed Utilisation; and

 

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

 

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

 

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

 

6.7                           **Renewal of a Letter of Credit or BankGuarantees**

 

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

 

(b)                           The Finance Parties shall treat any Renewal Request inthe same way as a Utilisation Request for a Letter of Credit or Bank Guaranteeexcept that the conditions set out in paragraphs (d) and (g) ofClause 6.4 (*Completion of a UtilisationRequest for Letters of Credit**orBank Guarantees*) shall not apply.

 

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

 

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

 

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

 

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

 

6.8                           **Revaluation of Letters of Credit andBank Guarantees**

 

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

 

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

 

7.                                 **Letters of Credit and BankGuarantees**

 

7.1                           **Immediately payable**

 

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

 

7.2                           **Assignments and transfers**

 

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

 

(b)                           If paragraph (a) and the conditions and procedurefor transfer specified in Clause 27 (*Changesto the Lenders*) are satisfied, then on the Transfer Date the IssuingBank and the New Lender shall acquire the same rights and assume the sameobligations between themselves as they would have acquired and assumed had theNew Lender been an Original Lender with the rights and/or obligations acquiredor assumed by it as a result of the transfer and to that extent the IssuingBank and the Existing Lender shall each be released from further obligations toeach other under this Agreement.

 

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7.3                           **Fee payable in respect of Letters ofCredit and Bank Guarantees**

 

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

 

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

 

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

 

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

 

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

 

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

 

7.4                           **Claims under a Letter of Credit orBank Guarantee**

 

(a)                            Each Borrower irrevocably and unconditionallyauthorises the Issuing Bank to pay any claim made or purported to be made undera Letter of Credit or Bank Guarantee requested by it and which appears on itsface to be in order (a “**claim**”).

 

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

 

(c)                            Each Borrower acknowledges that the Issuing Bank:

 

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

 

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

 

(d)                           The obligations of a Borrower under this Clause willnot be affected by:

 

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

 

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

 

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7.5                           **Indemnities**

 

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

 

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

 

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

 

(d)                           The Borrower which requested a Letter of Credit orBank Guarantee shall immediately on demand reimburse any Lender for any paymentit makes to the Issuing Bank under this Clause 7.5 (*Indemnities*) in respect of that Letter of Credit or BankGuarantee.

 

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

 

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

 

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

 

(ii)                                   the release of any other Obligor or any other personunder the terms of any composition or arrangement with any creditor of anymember of the Group;

 

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

 

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

 

(v)                                  any amendment (however fundamental) or replacement ofa Finance Document, any Letter of Credit or Bank Guarantee or any otherdocument or security;

 

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

 

(vii)                            any insolvency or similar proceedings.

 

7.6                           **Rights of contribution**

 

NoObligor will be entitled to any right of contribution or indemnity from anyFinance Party in respect of any payment it may make under this Clause 7.

 

7.7                           **Role of the Issuing Bank**

 

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

 

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

 

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

 

(d)                           The Issuing Bank may rely on:

 

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

 

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

 

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

 

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

 

(g)                           The Issuing Bank is not responsible for:

 

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

 

(ii)                                   the legality, validity, effectiveness, adequacy orenforceability of any Finance Document or any other agreement, arrangement ordocument entered into, made or executed in anticipation of or in connectionwith any Finance Document.

 

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7.8                           **Exclusion of liability**

 

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

 

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

 

7.9                           **Credit appraisal by the Lenders**

 

Withoutaffecting the responsibility of any Obligor for information supplied by it oron its behalf in connection with any Finance Document, each Lender confirms tothe Issuing Bank that it has been, and will continue to be, solely responsiblefor making its own independent appraisal and investigation of all risks arisingunder or in connection with any Finance Document, including but not limited to,those listed in paragraphs (a) to (d) of Clause 29.15 (*Credit appraisal by the Lenders*).

 

7.10                     **Address for notices**

 

Theaddress and fax number (and the department or officer, if any, for whoseattention the communication is to be made) of the Issuing Bank for anycommunication or document to be made or delivered under or in connection withthe Finance Documents is that notified in writing to the Agent prior to thedate of this Agreement or any substitute address, fax number or department orofficer as the Issuing Bank may notify to the Agent by not less than fiveBusiness Days’ notice.

 

7.11                     **Amendments and Waivers**

 

Notwithstandingany other provision of this Agreement, an amendment or waiver which relates tothe rights or obligations of the Issuing Bank may not be effected without theconsent of the Issuing Bank.

 

8.                                 **Optional Currencies**

 

8.1                           **Selection of currency**

 

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

 

8.2                           **Unavailability of a currency**

 

Ifbefore the Specified Time on any Quotation Day:

 

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

 

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

 

theAgent will give notice to the relevant Borrower to that effect by the SpecifiedTime on that day. In this event, any Lender that gives notice pursuant to thisClause 8.2 will be required to participate in the Loan in the Base Currency (inan amount equal to that Lender’s proportion of 

 

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theBase Currency Amount or, in respect of a Rollover Loan, an amount equal to thatLender’s proportion of the Base Currency Amount of the Rollover Loan that isdue to be made) and its participation will be treated as a separate Loandenominated in the Base Currency during that Interest Period.

 

9.                                 **Ancillary Facilities**

 

9.1                           **Establishment of Ancillary Facilities**

 

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

 

9.2                           **Types of Ancillary Facility**

 

EachAncillary Facility may comprise any of the following (or any combination of thefollowing):

 

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

 

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

 

9.3                           **Request for Ancillary Facilities**

 

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

 

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

 

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

 

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

 

(iii)                                the type or types of facility to comprise thatAncillary Facility (which must comply with Clause 9.2 (*Types of Ancillary Facility*));

 

(iv)                               the date (the “**CommencementDate**”) on which that Ancillary Facility is to become available(which must be a date on which Facility B is available to be drawn and must notbe less than 10 Business Days after the date on which the Agent receives theAncillary Facility Request);

 

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

 

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

 

(vii)                            the currency or currencies (which must comply withparagraph (c) below) in which utilisations under that Ancillary Facilitymay be requested;

 

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

 

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

 

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

 

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

 

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

 

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

 

9.4                           **Grant of Ancillary Facility**

 

TheLender identified in a duly completed Ancillary Facility Request shall becomean Ancillary Lender authorised to make the proposed Ancillary Facilityavailable with effect from the proposed Commencement Date, if the followingconditions are fulfilled:

 

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

 

(b)                                  the proposed Ancillary Commitment under that AncillaryFacility will not, when aggregated with the Ancillary Commitments under allother Ancillary Facilities in effect on that Commencement Date, exceed theTotal Ancillary Limit; and

 

(c)                                   the proposed Ancillary Lender has notified the Agentby that Commencement Date that it agrees to make available that AncillaryFacility.

 

9.5                           **Adjustments to Facility B Commitment**

 

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

 

(b)                           If and to the extent that:

 

(i)                                      any Ancillary Facility expires, or is cancelled (inwhole or in part) in accordance with Clause 9.8 (*Voluntary cancellation of Ancillary Facilities*); and

 

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

 

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

 

9.6                           **Terms of Ancillary Facilities**

 

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

 

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

 

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

 

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

 

(iv)                               cancellation, termination or enforcement of theAncillary Facility shall only occur as described in Clause 9.8 (*Voluntary cancellation of Ancillary Facilities*),Clause 11  (*Prepayment and cancellation*)**or Clause 26.16 (*Acceleration*).

 

(b)                           Any material variation to any Ancillary Facility(including any proposed increase or reduction in the Ancillary Commitment)shall be in accordance with and subject to this Clause 9.

 

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

 

(d)                           In the case of any inconsistency between any term ofan Ancillary Facility and any term of this Agreement, this Agreement shallprevail.

 

9.7                           **Limits on Ancillary Facilities**

 

TheCompany shall ensure that:

 

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

 

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

 

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

 

9.8                           **Voluntary cancellation of AncillaryFacilities**

 

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

 

9.9                           **Notice in respect of AncillaryFacilities**

 

(a)                            Each Ancillary Lender shall promptly notify the Agentof:

 

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

 

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

 

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

 

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

 

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

 

9.10                     **Ancillary Outstandings**

 

Therelevant Borrower under an Ancillary Facility shall repay or pay on the duedate each amount payable under that Ancillary Facility.

 

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**SECTION ****4**

 

**REPAYMENT,PREPAYMENT AND CANCELLATION**

 

10.                           **Repayment**

 

10.1                     **Repayment of Facility A Loans**

 

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

 
| **Facility A Repayment Date** | ** ** | **Facility A Repayment Instalment (€)** | ** ** |
|----------------------------------------------|------------|------------------------------------------------------------------|------------|
| 12 months after the date of this Agreement   |       | 5,000,000                                                        |       |
| 18 months after the date of this Agreement   |       | 5,000,000                                                        |       |
| 24 months after the date of this Agreement   |       | 10,000,000                                                       |       |
| 30 months after the date of this Agreement   |       | 10,000,000                                                       |       |
| 36 months after the date of this Agreement   |       | 10,000,000                                                       |       |
| 42 months after the date of this Agreement   |       | 15,000,000                                                       |       |
| 48 months after the date of this Agreement   |       | 15,000,000                                                       |       |
| 54 months after the date of this Agreement   |       | 15,000,000                                                       |       |
| 60 months after the date of this Agreement   |       | 215,000,000                                                      |       |

 

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

 

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

 

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

 

10.2                     **Repayment of Facility B Loans**

 

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

 

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

 

(c)                            Each Borrower shall repay each Letter of Credit orBank Guarantee requested by that Borrower on the Termination Date applicable toFacility B.

 

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10.3                     **Repayment of Ancillary Facilities**

 

Onthe Termination Date each Borrower under an Ancillary Facility shall repay allamounts (if any) owing or outstanding under that Ancillary Facility.

 

11.                           **Prepayment and cancellation**

 

11.1                     **Illegality in relation to a Lender orthe Issuing Bank**

 

Ifit becomes unlawful in any applicable jurisdiction for a Lender or the IssuingBank to perform any of its obligations as contemplated by this Agreement or tofund or maintain its participation in any Utilisation or to issue or leaveoutstanding any Letter of Credit or Bank Guarantee:

 

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

 

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

 

(c)                                   each Borrower shall repay that Lender’s participationin the Utilisations made to that Borrower on the last day of the InterestPeriod for each Utilisation occurring after the Agent has notified the Companyor, if earlier, the date specified by the Lender in the notice delivered to theAgent (being no earlier than the last day of any applicable grace periodpermitted by law); and

 

(d)                                  if the unlawfulness relates to the Issuing Bank and noother Lender has agreed to be an Issuing Bank pursuant to the terms of thisAgreement, upon the Agent notifying the Company, Facility B shall cease to beavailable for the issue of Letters of Credit or Bank Guarantees and the Companyshall procure that each of the relevant Borrowers shall use its best endeavoursto procure the release of each Letter of Credit or Bank Guarantee issued bythat Issuing Bank and outstanding at such time.

 

11.2                     **Illegality in relation to anAncillary Lender**

 

Ifit becomes unlawful in any applicable jurisdiction for an Ancillary Lender toperform any of its obligations as contemplated by this Agreement or anyAncillary Facility Document or to fund or maintain its participation in anyutilisation under any Ancillary Facility:

 

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

 

(b)                                  upon the Agent notifying the Company:

 

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

 

(ii)                               each Borrower shall use its best endeavours to procurethe release of any outstanding letter of credit, guarantee or other instrumentissued by that Ancillary Lender in respect of that Borrower under eachAncillary Facility made available by that Ancillary Lender and repay allamounts, if any, payable under each such Ancillary Facility on the earlier ofthe next date on which any payment or repayment is due under that facilityoccurring after the Agent has notified the Company or the date specified by theAncillary Lender in the notice delivered to 

 

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

 

11.3                     **Change of control**

 

(a)                            If a Change of Control Event occurs:

 

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

 

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

 

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

 

(iv)                               if a Lender so requires and notifies the Agent within30 days of the Company notifying the Agent of the occurrence of a Change ofControl Event, the Agent shall promptly notify the Company of the notificationby that Lender and the Company and that Lender shall negotiate in good faiththe continuation of the participation of the respective Lender in theFacilities. If no agreement is reached within 30 days of the Lender notifying theAgent, the Agent shall, by not less than 10 days’ notice to the Company (thedate specified in such notice being the “**RelevantLender Cancellation Date**”), cancel the Commitment of that Lender anddeclare the participation of that Lender in all outstanding Utilisations,together with accrued interest, and all other amounts accrued under the FinanceDocuments immediately due and payable, whereupon the Commitment of that Lenderwill be cancelled and all such outstanding amounts will become immediately dueand payable and declare that cash cover in respect of that Lender’sparticipation in each Letter of Credit or Bank Guarantee is immediately due andpayable whereupon it shall become immediately due and payable **provided that** the Company may, by writtennotice to the Agent and such Lender given in the period from the date suchLender notifies the Agent following the occurrence of a Change of Control Eventto the date 3 Business Days prior to the Relevant Lender Cancellation Date,replace such Lender by requiring such Lender to (and such Lender shall)transfer pursuant to Clause 26 (*Changes tothe Lenders*) all (and not part only) of its rights and obligationsunder this Agreement to a Lender or other bank, financial institution, trust,fund or other entity (a “**Replacement Lender**”)selected by the Company, and which is acceptable to the Agent (actingreasonably) and (in the case of any transfer of a Facility B Commitment) theIssuing Bank, which confirms its willingness to assume and does assume all theobligations of the transferring Lender (including the assumption of thetransferring Lender’s participations on the same basis as the transferringLender) for a purchase price in cash payable at the time of transfer equal tothe outstanding principal amount of such Lender’s participation in theoutstanding Utilisations and all accrued interest and/or Letter of Creditand/or Bank Guarantee fees, Break Costs and other amounts payable in relationthereto under the Finance Documents. The replacement of a Lender pursuant tothis Clause shall be subject to the following conditions:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

11.4                     **Voluntary cancellation**

 

TheCompany may, if it gives the Agent not less than 5 Business Days’ (or suchshorter period as the Majority Lenders may agree) prior notice, cancel thewhole or any part (being a minimum amount of €5,000,000) of an AvailableFacility. Any cancellation under this Clause 11.4 shall reduce the Commitmentsof the Lenders rateably under that Facility.

 

11.5                     **Mandatory prepayment - Net SaleProceeds**

 

(a)                            The Company shall ensure that an amount equal to allNet Sale Proceeds is applied in accordance with Clause 11.6 (*Application of Net Sale Proceeds prepayment*)below.

 

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

 

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

 

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

 

11.6                     **Application of Net Sale Proceedsprepayment**

 

(a)                            In this Clause 11.6, “**Receipt Date**” means the date on which any Net Sale Proceeds towhich paragraph (a) of Clause 11.5 (*Mandatoryprepayment — Net Sale Proceeds*) applies (the “**Relevant Net Sale Proceeds**) have beenreceived by any member of the Group.

 

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

 

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

 

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

 

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

 

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

 

(f)                              Any prepayment under this Clause 11.6 shall satisfythe obligations under Clause 10.1 (*Repaymentof Facility A Loans*) in inverse chronological order.

 

11.7                     **Mandatory prepayment - InsuranceProceeds**

 

(a)                            The Company shall ensure that an amount equal to allInsurance Proceeds is applied in accordance with Clause 11.8 (*Application of Insurance Proceeds prepayment*)below.

 

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

 

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

 

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

 

11.8                     **Application of Insurance Proceedsprepayment**

 

(a)                            In this Clause 11.8, “**Receipt Date**” means the date on which any Insurance Proceedsto which paragraph (a) of Clause 11.7 (*Mandatoryprepayment - Insurance Proceeds*) applies (the “**Relevant Insurance Proceeds**”) have beenreceived by any member of the Group.

 

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

 

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

 

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

 

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

 

(f)                              Any prepayment under this Clause 11.8 shall satisfythe obligations under Clause 10.1 (*Repaymentof Facility A Loans*) in inverse chronological order.

 

11.9                     **Excluded proceeds**

 

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

 

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

 

11.10               **Restriction on upstream payments**

 

(a)                            If there is a requirement to make a mandatoryprepayment pursuant to Clause 11.5 (*Mandatoryprepayment - Net Sale Proceeds*) or Clause 11.7 (*Mandatory prepayment - Insurance Proceeds*)and, in order to effect such prepayment, moneys need to be upstreamed orotherwise transferred from one member of the Group to another member of theGroup and:

 

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

 

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

 

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

 

(b)                           The Company shall continue to use its reasonableendeavours to procure that the prepayment which, but for this Clause 11.10,would have been due is made.  If at anytime the restrictions set out in paragraph (a) above are removed, anyrelevant proceeds will be applied in prepayment of the Facilities on theearlier of 3 Months after the restrictions are removed and the expiry of theirInterest Periods current when the restrictions are removed and otherwise inaccordance with Clauses 11.5 (*Mandatoryprepayment - Net Sale Proceeds*) to 11.9 (*Excluded proceeds*).

 

11.11               **Voluntary prepayment of Facility ALoans**

 

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

 

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

 

(c)                            Any prepayment under this Clause 11.11 shall satisfythe obligations under Clause 10.1 (*Repaymentof Facility A Loans*) in inverse chronological order.

 

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11.12               **Voluntary prepayment of Facility BUtilisations**

 

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

 

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

 

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

 

11.13               **Right of repayment and cancellationin relation to a single Lender, Ancillary Lender or Issuing Bank**

 

(a)                            If:

 

(i)                                      any sum payable to any Lender or Ancillary Lender orthe Issuing Bank by an Obligor is required to be increased under paragraph (c) ofClause 16.2 (*Tax gross-up*); or

 

(ii)                                   any Lender or Ancillary Lender or the Issuing Bankclaims indemnification from the Company under Clause 16.3 (*Tax indemnity*) or Clause 17 (*Increased costs*),

 

theCompany may, whilst the circumstance giving rise to the requirement forgross-up or indemnification continues, give the Agent notice:

 

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

 

(ii)                                   (if such circumstances relate to the Issuing Bank) ofrepayment of any outstanding Letter of Credit or Bank Guarantee issued by itand cancellation of its appointment as an Issuing Bank under this Agreement inrelation to any Letters of Credit or Bank Guarantees to be issued in thefuture; or

 

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

 

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

 

(c)                            On the last day of each Interest Period which endsafter the Company has given notice under paragraph (a) above (or, ifearlier, the date specified by the Company in that notice), each Borrower towhich a Utilisation or utilisation of an Ancillary Facility is outstandingshall repay that Lender’s participation in that Utilisation or utilisation ofan Ancillary Facility granted by that Ancillary Lender.

 

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11.14               **Restrictions**

 

(a)                            Any notice of cancellation or prepayment given by anyParty under this Clause 11 shall be irrevocable and, unless a contraryindication appears in this Agreement, shall specify the date or dates uponwhich the relevant cancellation or prepayment is to be made and the amount of thatcancellation or prepayment.

 

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

 

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

 

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

 

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

 

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

 

(g)                           If the Agent receives a notice under this Clause 11 itshall promptly forward a copy of that notice to either the Company or theaffected Lender, as appropriate.

 

11.15               **Clean Down**

 

TheCompany shall:

 

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

 

(i)                                  all Facility B Loans; and

 

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

 

afterdeducting an amount equal to the aggregate amount of Cash and Cash EquivalentInvestments held by each member of the Group, are reduced to zero;

 

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

 

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

 

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**SECTION ****5**

 

**COSTSOF UTILISATION**

 

12.                           **Interest**

 

12.1                     **Calculation of interest**

 

Therate of interest on each Loan for each Interest Period is the percentage rateper annum which is the aggregate of the applicable:

 

(a)                                   Margin;

 

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

 

(c)                                   Mandatory Cost, if any.

 

12.2                     **Payment of interest**

 

TheBorrower to which a Loan has been made shall pay accrued interest on that Loanon the last day of each Interest Period (and, if the Interest Period is longerthan six Months, on the dates falling at six monthly intervals after the firstday of the Interest Period).

 

12.3                     **Default interest**

 

(a)                            If an Obligor fails to pay any amount payable by itunder a Finance Document on its due date, interest shall accrue on the overdueamount from the due date up to the date of actual payment (both before andafter judgment) at a rate which, subject to paragraph (b) below, is thesum of 1 per cent. and the rate which would have been payable if the overdueamount had, during the period of non-payment, constituted a Loan in thecurrency of the overdue amount for successive Interest Periods, each of aduration selected by the Agent (acting reasonably).  Any interest accruing under this Clause 12.3shall be immediately payable by the Obligor on demand by the Agent.

 

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

 

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

 

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

 

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

 

12.4                     **Notification of rates of interest**

 

TheAgent shall promptly notify the Lenders and the relevant Borrower of thedetermination of a rate of interest under this Agreement.

 

12.5                     **Adjustment of Margin**

 

(a)                            Subject to this Clause 12.5, the Margin applicable toeach Utilisation shall be the rate per annum specified in the definition ofMargin set out in Clause 1.1 (*Definitions*)**adjusted by reference to 

 

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

 
| **Ratio**                                           | ** ** | **Margin (% p.a.)** | ** ** |
|-----------------------------------------------------|------------|-------------------------------|------------|
| Equal to or higher than 3.5:1                       |       | 3.00                          |       |
| Equal to or higher than 3.0:1 but lower than  3.5:1 |       | 2.50                          |       |
| Equal to or higher than 2.5:1 but lower than  3.0:1 |       | 2.25                          |       |
| Equal to or higher than 2.0:1 but lower than  2.5:1 |       | 2.00                          |       |
| Equal to or higher than 1.5:1 but lower than  2.0:1 |       | 1.50                          |       |
| Lower than 1.5:1                                    |       | 1.00                          |       |

 

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

 

(c)                            Any adjustment to the Margin under paragraph (a) aboveshall take effect on the date (the “**MarginAdjustment Date**”) falling on the first day of the Interest Periodcommencing after receipt by the Agent of a Compliance Certificate (and thefinancial statements with which it is required by this Agreement to bedelivered) in accordance with Clause 23.2 (*ComplianceCertificate*).

 

(d)                           If the Margin for a Utilisation is reduced for anyperiod under this Clause 12.5 but the annual audited financial statements ofthe Group (and the Compliance Certificate with which they are required by thisAgreement to be delivered) subsequently received by the Agent do not confirmthe basis for that reduction, that reduction shall be reversed withretrospective effect. In that event, the Margin for that Utilisation shall bethe rate per annum specified opposite the relevant range set out in the tableabove of the revised ratio of Net Debt to EBITDA calculated using the figuresin that Compliance Certificate. The Company shall promptly pay to the Agent anyamount necessary to put the Agent and Lenders in the position they would havebeen in had the appropriate rate of the Margin applied during that period.

 

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(e)                            If the annual audited financial statements of theGroup (and the Compliance Certificate with which they are required by thisAgreement to be delivered) subsequently received by the Agent show that theMargin for any Utilisation should have been reduced for any period, the nextpayments of interest falling due on the Utilisations shall be reduced to theextent necessary to put the Obligors in the position they would have been in ifthe Margin had been reduced for that period.

 

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

 

13.                           **Interest Periods**

 

13.1                     **Selection of Interest Periods**

 

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

 

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

 

(c)                            If a Borrower (or the Company) fails to deliver aSelection Notice to the Agent in accordance with paragraph (b) above, therelevant Interest Period will, subject to Clause 13.2 (*Changes to Interest Periods*), be oneMonth.

 

(d)                           Subject to this Clause 13, a Borrower (or the Company)may select an Interest Period of 1, 3 or 6 Months or any other period agreedbetween the Company and the Agent (acting on the instructions of all theLenders participating in the relevant Facility). In addition a Borrower (or theCompany on its behalf) may select an Interest Period of less than one Month (inrelation to Facility A), if necessary to ensure that there are sufficientFacility A Loans (with an aggregate Base Currency Amount equal to or greaterthan the Repayment Instalment) which have an Interest Period ending on aFacility A Repayment Date for the Borrowers to make the Repayment Instalmentdue on that date.

 

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

 

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

 

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

 

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

 

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13.2                     **Changes to Interest Periods**

 

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

 

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

 

13.3                     **Non-Business Days**

 

Ifan 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 calendarmonth (if there is one) or the preceding Business Day (if there is not).

 

13.4                     **Consolidation and division ofFacility A Loans**

 

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

 

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

 

(ii)                                   end on the same date; and

 

(iii)                                are made to the same Borrower,

 

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

 

(b)                           Subject to Clause 4.4 (*Maximum number of Utilisations*) and Clause 5.3 (*Currency and amount*), if a Borrower (orthe Company on its behalf) requests in a Selection Notice that a Facility ALoan be divided into two or more Facility A Loans, that Facility A Loan will,on the last day of its Interest Period, be so divided with Base Currency Amountsspecified in that Selection Notice, being an aggregate Base Currency Amountequal to the Base Currency Amount of the Facility A Loan immediately before itsdivision.

 

14.                           **Changes to the calculationof interest**

 

14.1                     **Absence of quotations**

 

Subjectto Clause 14.2 (*Market disruption*),if LIBOR or, if applicable, EURIBOR is to be determined by reference to theReference Banks but a Reference Bank does not supply a quotation by theSpecified Time on the Quotation Day, the applicable LIBOR or EURIBOR shall bedetermined on the basis of the quotations of the remaining Reference Banks.

 

14.2                     **Market disruption**

 

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

 

(i)                                      the Margin;

 

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

 

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expresses as a percentage rate per annum thecost to that Lender of funding its participation in that Loan from whateversource it may reasonably select; and

 

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

 

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

 

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

 

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

 

14.3                     **Alternative basis of interest orfunding**

 

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

 

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

 

14.4                     **Break Costs**

 

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

 

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

 

15.                           **Fees**

 

15.1                     **Commitment fee**

 

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

 

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

 

15.2                     **Arrangement fee**

 

TheCompany shall pay to the Arranger an arrangement fee in the amount and at thetimes agreed in a Fee Letter.

 

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15.3                     **Agency fee**

 

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

 

15.4                     **Security Agency fee**

 

TheCompany shall pay to the Security Agent (for its own account) a security agencyfee in the amount and at the times agreed in a Fee Letter.

 

15.5                     **Issuing Bank fee**

 

TheCompany shall pay to the Issuing Bank (for its own account) a fee in the amountand at the times agreed in a Fee Letter.

 

15.6                     **Ancillary Facility fees**

 

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

 

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**SECTION ****6**

 

**ADDITIONALPAYMENT OBLIGATIONS**

 

16.                           **Tax gross up andindemnities**

 

16.1                     **Definitions**

 

“**Finnish Qualifying Lender**” means a Lenderwhich is:

 

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

 

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

 

“**German Borrower**” means a Borrower residentfor tax purposes in Germany.

 

“**Protected Party**” means a Finance Partywhich 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 anysum deemed for the purposes of Tax to be received or receivable) under aFinance Document.

 

“**Qualifying Lender**” means :

 

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

 

(A)                           lending through a Facility Office in Germany;

 

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

 

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

 

(ii)                                   a Finnish Qualifying Lender; or

 

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

 

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

 

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

 

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

 

“**Tax Deduction**” means a deduction orwithholding for or on account of Tax from a payment under a Finance Document.

 

“**Tax Payment**” means either the increase in apayment made by an Obligor to a Finance Party under Clause 16.2 (*Tax gross-up*) or a payment under Clause16.3 (*Tax indemnity*).

 

“**Treaty Lender**” means a Lender which:

 

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(i)                                      is treated as a resident of a Treaty State for thepurposes of the Treaty; and

 

(ii)                                   does not carry on a business in the Federal Republicof Germany or the jurisdiction of incorporation of the relevant Borrowerthrough a permanent establishment with which that Lender’s participation in theLoan is effectively connected.

 

“**Treaty State**” means a jurisdiction having adouble taxation agreement (a “**Treaty**”)with the Federal Republic of Germany or the jurisdiction of incorporation ofthe relevant Borrower which makes provision for full exemption for tax imposedby the Federal Republic of Germany or the jurisdiction of incorporation of therelevant Borrower on interest.

 

(b)                           Unless a contrary indication appears, in this Clause16 a reference to “determines” or “determined” means a determination made inthe absolute discretion of the person making the determination.

 

16.2                     **Tax gross-up**

 

(a)                            (Each Obligor shall make all payments to be made by itwithout any Tax Deduction, unless a Tax Deduction is required by law.

 

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

 

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

 

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

 

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

 

(ii)                                   the relevant Lender is a Treaty Lender and the Obligormaking the payment is able to demonstrate that the payment could have been madeto the Lender without the Tax Deduction had that Lender complied with itsobligations under paragraph (g) below.

 

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

 

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

 

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

 

16.3                     **Tax indemnity**

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(A)                           is compensated for by an increased payment underClause 16.2 (*Tax gross-up*); or

 

(B)                             would have been compensated for by an increasedpayment under Clause 16.2 (*Tax gross-up*)but was not so compensated solely because one of the exclusions in paragraph (d) ofClause 16.2 (*Tax gross-up*)applied.

 

(c)                            A Protected Party making, or intending to make, aclaim under paragraph (a) above shall promptly notify the Agent of theevent which will give, or has given, rise to the claim, following which theAgent shall notify the Company.

 

(d)                           A Protected Party shall, on receiving a payment froman Obligor under this Clause 16.3, notify the Agent.

 

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16.4                     **Tax Credit**

 

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

 

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

 

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

 

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

 

16.5                     **Stamp taxes**

 

TheCompany shall pay and, within three Business Days of demand, indemnify eachFinance Party against any cost, loss or liability that Finance Party incurs inrelation to all stamp duty, registration and other similar Taxes payable inrespect of any Finance Document.

 

16.6                     **Value added tax**

 

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

 

(b)                           If VAT is chargeable on any supply made by any FinanceParty (the “**Supplier**”) to anyother Finance Party (the “**Recipient**”)under a Finance Document, and any Party (the “**RelevantParty**”) is required by the terms of any Finance Document to pay anamount equal to the consideration for such supply to the Supplier (rather thanbeing required to reimburse the Recipient in respect of that consideration),such Party shall also pay to the Supplier (in addition to and at the same timeas paying such amount) an amount equal to the amount of such VAT. The Recipientwill promptly pay to the Relevant Party an amount equal to any credit orrepayment from the relevant tax authority which it reasonably determinesrelates to the VAT chargeable on that supply.

 

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

 

16.7                     **German Earnings Stripping Rules**

 

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

 

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BusinessTax Reform Act 2008 (*Unternehmensteuerreformgesetz*2008, published in the Federal Gazette, BGBI. I 2007, 1912 et seq.), withregard to the application of the equity escape clause, the Finance Partiesshall, upon receipt of a request of the relevant Borrower (containing adetailed proposal for the requested assistance) enter into good faithnegotiations as to what extent it is reasonably practical for the FinanceParties to assist the Borrower in this respect. For the avoidance of doubt, noFinance Party shall be obliged to release any Security, change this Agreement ordisclose information which is confidential under applicable statutory orcontractual banking secrecy rules.

 

17.                           **Increased costs**

 

17.1                     **Increased costs**

 

(a)                            Subject to Clause 17.3 (*Exceptions*) the Company shall, within three Business Days ofa demand by the Agent, pay for the account of a Finance Party the amount of anyIncreased Costs incurred by that Finance Party or any of its Affiliates as aresult of (i) the introduction of or any change in (or in theinterpretation, administration or application of) any law or regulation or (ii) compliancewith any law or regulation made after the date of this Agreement.

 

(b)                           In this Agreement “**IncreasedCosts**” means:

 

(i)                                      a reduction in the rate of return from the Facility oron a Finance Party’s (or its Affiliate’s) overall capital;

 

(ii)                                   an additional or increased cost; or

 

(iii)                                a reduction of any amount due and payable under anyFinance Document,

 

whichis incurred or suffered by a Finance Party or any of its Affiliates to theextent that it is attributable to that Finance Party having entered into itsCommitment or funding or performing its obligations under any Finance Document.

 

17.2                     **Increased cost claims**

 

(a)                            A Finance Party intending to make a claim pursuant toClause 17.1 (*Increased costs*),shall notify the Agent of the event giving rise to the claim, following whichthe Agent shall promptly notify the Company.

 

(b)                           Each Finance Party shall, as soon as practicable aftera demand by the Agent, provide a certificate confirming the amount of itsIncreased Costs.

 

17.3                     **Exceptions**

 

(a)                            Clause 17.1 (*Increasedcosts*) does not apply to the extent any Increased Cost is:

 

(i)                                      attributable to a Tax Deduction required by law to bemade by an Obligor;

 

(ii)                                   compensated for by Clause 16.3 (*Tax indemnity*) (or would have been compensatedfor under Clause 16.3 (*Tax indemnity*)but was not so compensated solely because any of the exclusions in paragraph (b) ofClause 16.3 (*Tax indemnity*)applied); or

 

(iii)                                compensated for by the payment of the Mandatory Cost;or

 

(iv)                               attributable to the wilful breach by the relevantFinance Party or its Affiliates of any law or regulation.

 

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(b)                           In this Clause 17.3, a reference to a “Tax Deduction”has the same meaning given to the term in Clause 16.1 (*Definitions*).

 

18.                           **Other indemnities**

 

18.1                     **Currency indemnity**

 

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

 

(i)                                      making or filing a claim or proof against thatObligor;

 

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

 

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

 

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

 

18.2                     **Other indemnities**

 

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

 

(a)                                   the occurrence of any Event of Default;

 

(b)                                  a failure by an Obligor to pay any amount due under aFinance Document on its due date, including without limitation, any cost, lossor liability arising as a result of Clause 32 (*Sharingamong the Finance Parties*);

 

(c)                                   funding, or making arrangements to fund, itsparticipation in a Utilisation requested by a Borrower in a Utilisation Requestbut not made by reason of the operation of any one or more of the provisions ofthis Agreement (other than by reason of default or negligence by that FinanceParty alone); or

 

(d)                                  a Utilisation (or part of a Utilisation) not beingprepaid in accordance with a notice of prepayment given by a Borrower or theCompany.

 

18.3                     **Indemnity to the Agent and theSecurity Agent**

 

The Company shall promptlyindemnify the Agent and the Security Agent against any cost, loss or liabilityincurred by the Agent or the Security Agent (acting reasonably) as a result of:

 

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

 

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

 

19.                           **Mitigation by the Lenders**

 

19.1                     **Mitigation**

 

(a)                            Each Finance Party shall, in consultation with theCompany, take all reasonable steps to mitigate any circumstances which ariseand which would result in any amount becoming payable under or pursuant to, orcancelled pursuant to, any of Clause 11.1 (*Illegality**in relation to a Lender or the Issuing Bank*),Clause 11.2 (*Illegality in relation to anAncillary Lender*), Clause 16 (*Taxgross-up and indemnities*) or Clause 17 (*Increased costs*) including (but not limited to) transferringits rights and obligations under the Finance Documents to another Affiliate orFacility Office.

 

(b)                           Paragraph (a) above does not in any way limit theobligations of any Obligor under the Finance Documents.

 

19.2                     **Limitation of liability**

 

(a)                            The Company shall indemnify each Finance Party for allcosts and expenses reasonably incurred by that Finance Party as a result ofsteps taken by it under Clause 19.1 (*Mitigation*).

 

(b)                           A Finance Party is not obliged to take any steps underClause 19.1 (*Mitigation*) if, inthe opinion of that Finance Party (acting reasonably), to do so might beprejudicial to it.

 

20.                           **Costs and expenses**

 

20.1                     **Transaction expenses**

 

The Company shall promptlyon demand pay the Agent, the Security Agent and the Arranger the amount of allcosts and expenses (including legal fees) reasonably incurred by any of them inconnection with the negotiation, preparation, printing, execution andsyndication of:

 

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

 

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

 

20.2                     **Amendment costs**

 

If (a) anObligor requests an amendment, waiver or consent or (b) an amendment isrequired pursuant to Clause 33.9 (*Change ofcurrency*), the Company shall, within three Business Days of demand,reimburse the Agent and the Security Agent for the amount of all costs andexpenses (including legal fees) reasonably incurred by the Agent or theSecurity Agent in responding to, evaluating, negotiating or complying with thatrequest or requirement.

 

20.3                     **Enforcement costs**

 

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

 

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20.4                     **Security Agent expenses**

 

TheCompany shall promptly on demand pay the Security Agent the amount of all costsand expenses (including legal fees) reasonably incurred by it in connectionwith the administration or release of any Security created pursuant to anySecurity Document.

 

20.5                     **Undertaking to pay**

 

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

 

(i)                                      any Finance Document;

 

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

 

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

 

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

 

exceptto the extent such liability, damages, loss, cost or expense incurred orawarded results from any breach by a Finance Party of a Finance Document whichis finally judicially determined to have resulted directly from the grossnegligence or wilful misconduct of that Relevant Party.

 

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

 

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

 

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

 

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

 

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**SECTION ****7**

 

**guarantee**

 

21.                           **Guarantee and indemnity**

 

21.1                     **Guarantee and indemnity**

 

EachGuarantor irrevocably and unconditionally jointly and severally:

 

(a)                                   guarantees to each Finance Party punctual performanceby each Borrower of all that Borrower’s obligations under the FinanceDocuments;

 

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

 

(c)                                   agrees with each Finance Party that if, for anyreason, any amount claimed by a Finance Party under this Clause 21 is notrecoverable on the basis of a guarantee, it will be liable to indemnify thatFinance Party against any cost, loss or liability it incurs as a result of aBorrower not paying any amount when due under or in connection with any FinanceDocument. The amount payable by a Guarantor under this indemnity will notexceed the amount it would have had to pay under this Clause 21 if the amountclaimed had been recoverable on the basis of a guarantee.

 

21.2                     **Continuing guarantee**

 

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

 

21.3                     **Reinstatement**

 

Ifas a result of insolvency or any similar event:

 

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

 

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

 

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

 

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

 

21.4                     **Waiver of defences**

 

Theobligations of each Guarantor under this Clause 21 will not be affected by anact, omission, matter or thing which, but for this Clause, would reduce,release or prejudice any of its obligations under this Clause 21 (withoutlimitation and whether or not known to it or any Finance Party) including:

 

(a)                                   any time, waiver or consent granted to, or compositionwith, any Obligor or other person;

 

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(b)                                  the release of any other Obligor or any other personunder the terms of any composition or arrangement with any creditor of anymember of the Group;

 

(c)                                   the taking, variation, compromise, exchange, renewalor release of, or refusal or neglect to perfect, take up or enforce, any rightsagainst, or security over assets of, any Obligor or other person or anynon-presentation or non-observance of any formality or other requirement inrespect of any instrument or any failure to realise the full value of anysecurity;

 

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

 

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

 

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

 

(g)                                  any insolvency or similar proceedings.

 

21.5                     **Immediate recourse**

 

EachGuarantor waives any right it may have of first requiring any Finance Party (orany trustee or agent on its behalf) to proceed against or enforce any otherrights or security or claim payment from any person before claiming from thatGuarantor under this Clause 21.  Thiswaiver applies irrespective of any law or any provision of a Finance Documentto the contrary.

 

21.6                     **Appropriations**

 

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

 

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

 

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

 

21.7                     **Deferral of Guarantors’ rights**

 

Untilall amounts which may be or become payable by the Obligors under or inconnection with the Finance Documents have been irrevocably paid in full andunless the Agent or, as the case may be, the Security Agent otherwise directs,no Guarantor will exercise any rights which it may have by reason ofperformance by it of its obligations under the Finance Documents:

 

(a)                                   to be indemnified by an Obligor;

 

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

 

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

 

If aGuarantor receives any benefit, payment or distribution in relation to suchrights it shall hold that benefit, payment or distribution to the extentnecessary to enable all amounts which may be or become payable to the FinanceParties by the Obligors under or in connection with the Finance Documents to berepaid in full on trust for the Finance Parties and shall promptly pay ortransfer the same to the Agent or as the Agent may direct for application inaccordance with Clause 33 (*Payment mechanics*)of this Agreement.

 

21.8                     **Additional security**

 

Thisguarantee is in addition to and is not in any way prejudiced by any otherguarantee or security now or subsequently held by any Finance Party.

 

21.9                     **Release of Guarantors’ right ofcontribution**

 

Ifany Guarantor (a “**Retiring Guarantor**”)ceases to be a Guarantor in accordance with the terms of the Finance Documentsfor the purpose of any sale or other disposal of that Retiring Guarantor thenon the date such Retiring Guarantor ceases to be a Guarantor:

 

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

 

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

 

21.10               **Preservation of stated share capitalof a German Guarantor**

 

(a)                            To the extent that the guarantee created under thisClause 21 (the “**Guarantee**”)is granted by a Guarantor incorporated in Germany as a limited liabilitycompany (*GmbH*) (each a “**German Guarantor**”) and the Guarantee of theGerman Guarantor guarantees amounts

 

(i)                                      which are owed by direct or indirect shareholders ofthe German Guarantor or Subsidiaries of such shareholders (with the exceptionof Subsidiaries which are also Subsidiaries of the German Guarantor); andprovided that

 

(ii)                                   such amounts do not correspond to funds that have beenon-lent to, or otherwise been passed on to, the relevant German Guarantor orany of its Subsidiaries and have not been repaid,

 

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theGuarantee of the German Guarantor shall be subject to certain limitations asset out in paragraph (b). In relation to any other amounts guaranteed, theGuarantee of the German Guarantor remains unlimited.

 

(b)                           To the extent that the demand under the Guaranteeagainst a German Guarantor is made in respect of amounts in relation to whichthe conditions pursuant to paragraph (a) are fulfilled, the relevantGerman Guarantor’s liability shall be limited as follows:

 

(i)                                      Subject to sub-paragraphs (iii) to (viii) below,the Agent shall not be entitled to enforce the Guarantee to the extent thatsuch enforcement has the effect of

 

(A)                           reducing the German Guarantor’s net assets (*Nettovermögen*) (the “**Net Assets**”) to an amount less than itsstated share capital (*Stammkapital*),or

 

(B)                             (if its Net Assets are already lower than its statedshare capital) causing such amount to be further reduced,

 

andthereby affects its assets which are required for the obligatory preservationof its stated share capital according to §§ 30, 31 German GmbH-Act (*GmbH-Gesetz*) (the “**GmbH-Act**”).

 

(ii)                                   The value of the Net Assets shall be determined inaccordance with GAAP consistently applied by the German Guarantor in preparingits unconsolidated balance sheets (*Jahresabschluss*according to § 42 GmbH-Act, §§ 242, 264 HGB) in the previous years,save that

 

(A)                           the amount of any increase of the stated share capital(*Stammkapital*) of the GermanGuarantor registered after the date of this Agreement without the prior writtenconsent of the Agent shall be deducted from the relevant stated share capital;

 

(B)                             loans provided to the relevant German Guarantor by amember of the Group shall be disregarded if such loans are subordinated, or areconsidered subordinated pursuant to § 32a GmbH-Act; and

 

(C)                             loans and other liabilities incurred in violation ofthe provisions of this Agreement shall be disregarded to the extent suchviolation is caused by wilful misconduct or gross negligence of the managingdirectors of the relevant Guarantor.

 

(iii)                                The limitations set out in sub-paragraph (i) aboveshall only apply if and to the extent that the managing director(s) (*Geschäftsführer*) on behalf of therespective German Guarantor have confirmed in writing to the Agent within15 calendar days following the Agent’s demand under the Guarantee, to whatextent the demanded payment fulfils the conditions pursuant to paragraph (a) andwould cause its Net Assets to fall below its stated share capital (*Stammkapital*) or, if the Net Assets arealready less than the stated share capital (*Stammkapital*),would cause such amount to be further reduced (the “**Management Determination**”).

 

(iv)                               If the Agent disagrees with the ManagementDetermination, the Agent shall nevertheless be entitled to enforce theGuarantee up to such amount, which is undisputed between 

 

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itself and the relevant German Guarantor inaccordance with the provisions of paragraph (iii) above. In relationto the amount which is disputed, the Agent and such German Guarantor shallinstruct a firm of auditors of international standing and reputation todetermine within 45 calendar days (or such longer period as has beenagreed between the Company and the Agent) from the date the Agent has contestedthe Management Determination the value of available Net Assets (the “**Auditor’s Determination**”). If the Agent andthe German Guarantor do not agree on the appointment of a joint auditor within5 Business Days from the date the Agent has disputed the ManagementDetermination, the Agent shall be entitled to appoint auditors of internationalstanding and reputation. The amount determined as available in the Auditor’sDetermination shall be (except for manifest error) binding for all Parties. Thecosts of the Auditor’s Determination shall be borne by the Company and shall betaken into account in the calculation of Net Assets.

 

(v)                                  If, and to the extent that, the Guarantee has beenenforced without regard to the limitation set forth in sub-paragraph (i) because(A) the Management Determination was not delivered within the relevanttime frame or (B) the amount of the available Net Assets pursuant to theAuditor’s Determination is lower than the amount stated in the ManagementDetermination, the Finance Parties shall upon written demand of the relevantGerman Guarantor to the Agent (on behalf of the Finance Parties) repay anyamount (if and to the extent already paid to the Finance Parties) in the caseof (A) above, which is necessary to maintain such German Guarantor’sstated share capital (*Stammkapital*),and in the case of (B) above up to and including the amount calculated inthe Auditor’s Determination calculated as of the date the demand under theGuarantee was made and in accordance with sub-paragraphs (i) and (ii) above,provided such demand for repayment is made to the Agent within 6 months (*Ausschlussfrist*) from the date theGuarantee has been enforced.

 

Ifpursuant to the Auditor’s Determination the amount of the available Net Assetsis higher than set out in the Management Determination the relevant GermanGuarantor shall pay such amount to the Finance Parties within 5 BusinessDays after receipt of the Auditor’s Determination.

 

(vi)                               If the German Guarantor intends to demonstrate thatthe enforcement of the Guarantee has led to one of the effects referred to insub-paragraph (i) above, then the German Guarantor shall realise atmarket value any and all of its assets that are shown in its balance sheet witha book value (*Buchwert*) which are(in the reasonable opinion of the Agent) significantly lower than their marketvalue and to the extent that such assets are not necessary for the relevantGerman Guarantor’s business (*nichtbetriebsnotwendig*), to the extent necessary to satisfy the amountsdemanded under this paragraph Guarantee.

 

(vii)                            The limitation set out in sub-paragraph (i) doesnot affect the right of the Finance Parties to claim again any outstandingamount at a later point in time if and to the extent that paragraph (i) wouldallow this at that later point.

 

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(viii)                         If the German Guarantor demonstrates that, at the timeof enforcement, it is obliged to file for the commencement of insolvencyproceedings for reason of over-indebtedness (*Überschuldung*),then for the determination of its Net Assets the lower of the amount of netassets shown by a regular balance sheet (*Handelsbilanz*)and by a balance sheet showing an over-indebtedness (*Überschuldungsstatus*) shall be relevant. In the assessmentof the Guarantor’s assets for the balance sheet showing an over-indebtedness,however, the continuation of the enterprise shall not be taken as a basis ifaccording to the circumstances such continuation is not deemed highly likely (*negative Fortführungsprognose*). Sub-paragraphs(iii) to (vii) above shall apply mutatis mutandis in relation to theGerman Guarantor invoking its over-indebtedness (*Überschuldung*).

 

(c)                            This Clause 21.10 (*Preservationof stated share capital of a German Guarantor*) shall apply *mutatis mutandis* if the Guarantee isgranted by a Guarantor incorporated as a limited liability partnership (*GmbH & Co. KG*) in relation to thelimited liability company as general partner (*Komplementär*)of such Guarantor.

 

21.11               **Limitation applicable to FinnishGuarantors**

 

Noobligations of any Guarantor incorporated in Finland under this Clause 21 shallextend to guarantee the obligations of any Borrower to the extent, and only tothe extent, it would constitute (i) unlawful distribution of assets withinthe meaning of Chapter 13, Section 1 of the Finnish Companies Act (*osakeyhtiölaki 624/2006*, as amended orre-enacted from time to time), or (ii) unlawful financial assistancewithin the meaning of Chapter 13, Section 10 of the Finnish Companies Act.

 

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**SECTION ****8**

 

**REPRESENTATIONS,UNDERTAKINGS AND EVENTS OF DEFAULT**

 

22.                           **Representations**

 

EachObligor makes the representations and warranties set out in this Clause 22 toeach Finance Party on the date of this Agreement.

 

22.1                     **S****tatus**

 

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

 

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

 

22.2                     **Binding obligations**

 

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

 

22.3                     **Non-conflict with other obligations**

 

The entry into andperformance by it of, and the transactions contemplated by, the FinanceDocuments do not and will not conflict with:

 

(a)                                   any law or regulation applicable to it;

 

(b)                                  its or any of its Subsidiaries’ constitutionaldocuments; or

 

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

 

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

 

22.4                     **Power and authority**

 

Ithas the power to enter into, perform and deliver, and has taken all necessaryaction to authorise its entry into, performance and delivery of, the FinanceDocuments to which it is a party and the transactions contemplated by thoseFinance Documents.

 

22.5                     **Validity and admissibility inevidence**

 

All Authorisations required:

 

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

 

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

 

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

 

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havebeen obtained or effected and are in full force and effect or will be obtainedor effected and will be in full force and effect no later than the date offirst utilisation of any Facility.

 

22.6                     **Governing law and enforcement**

 

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

 

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

 

22.7                     **Deduction of Tax**

 

Atthe date of this Agreement, it is not required to make any deduction for or onaccount of Tax from any payment it may make under any Finance Document.

 

22.8                     **No filing or stamp taxes**

 

Underthe law of its jurisdiction of incorporation it is not necessary that theFinance Documents be filed, recorded or enrolled with any court or otherauthority in that jurisdiction or that any stamp, registration or similar taxbe paid on or in relation to the Finance Documents or the transactionscontemplated by the Finance Documents.

 

22.9                     **No default**

 

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

 

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

 

22.10               **Information Memorandum**

 

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

 

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

 

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

 

22.11               **Financial statements**

 

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

 

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

 

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

 

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22.12               **Pari passu ranking**

 

Withoutlimiting Clause 21.17 (*Security*)below, its payment obligations under the Finance Documents rank at least paripassu with the claims of all its other unsecured and unsubordinated creditors,except for obligations mandatorily preferred by law applying to companiesgenerally.

 

22.13               **No proceedings pending or threatened**

 

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

 

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

 

22.14               **Environmental laws and licences**

 

It and each of itsSubsidiaries has:

 

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

 

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

 

(c)                                   complied with the terms of those EnvironmentalLicences,

 

ineach case where failure to do so has, or is reasonably likely to have aMaterial Adverse Effect.

 

22.15               **Environmental releases**

 

No:

 

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

 

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

 

ineach case in circumstances where this has or is reasonably likely to have aMaterial Adverse Effect.

 

22.16               **Solvency**

 

No:

 

(a)                                   corporate action, legal proceeding or other procedureor step described in Clause 25.7 (*Insolvencyproceedings*); or

 

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

 

hasbeen started in respect of it or any of its Subsidiaries.

 

22.17               **Security**

 

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

 

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

 

22.18               **Legal and beneficial ownership**

 

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

 

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

 

22.19               **Assets**

 

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

 

22.20               **JV Documents**

 

(a)                            The JV Documents:

 

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

 

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

 

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

 

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

 

22.21               **Pensions**

 

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

 

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

 

22.22               **Insurances**

 

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

 

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

 

22.23               **Repetition**

 

The RepeatingRepresentations (and, in the case of paragraph (b) below, therepresentations set out in Clauses 22.5 (*Validityand admissibility in evidence*) and 22.8 (*No filing or stamp taxes*)) are deemed to be made by eachObligor by reference to the facts and circumstances then existing on:

 

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

 

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

 

Therepresentations and warranties set out in Clause 22.10 (*Information Memorandum*) are deemed to bemade by each Obligor on the date on which the Information Memorandum isapproved by the Company and on the Syndication Date subject to, in each case,any disclosures made by the Company prior thereto.

 

23.                           **Information undertakings**

 

Theundertakings in this Clause 23 remain in force from the date of this Agreementfor so long as any amount is outstanding under the Finance Documents or anyCommitment is in force.

 

23.1                     **Financial statements**

 

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

 

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

 

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

 

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

 

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

 

(i)                                  its consolidated financial statements for thatFinancial Quarter; and

 

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

 

23.2                     **Compliance Certificate**

 

(a)                            The Company shall supply to the Agent, with each setof financial statements delivered pursuant to paragraph (a)(i) or (b)(i) ofClause 23.1 (*Financial statements*),a Compliance Certificate setting out (in reasonable detail) computations as tocompliance with Clause 24 (*Financialcovenants*) as at the date as at which those financial statementswere drawn up.

 

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

 

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

 

(c)                            Each Compliance Certificate shall be signed by twodirectors of the Company and, if required to be delivered with the financialstatements delivered pursuant to paragraph (a)(i) of Clause 23.1 (*Financial statements*), shall be reportedon by the Company’s auditors in the form reasonably required by the Agent.

 

23.3                     **Requirements as to financialstatements**

 

(a)                            Each set of financial statements delivered by theCompany pursuant to Clause 23.1 (*Financialstatements*) shall be certified by a director of the relevant companyas fairly representing its (or, as the case may be, its consolidated) financialcondition and operations as at the end of and for the period in relation towhich those financial statements were drawn up.

 

(b)                           The Company shall procure that each set of financialstatements delivered pursuant to Clause 23.1 (*Financialstatements*) is prepared using the Applicable Accounting Principles,unless, in relation to any set of financial statements, it notifies the Agentthat there has been a change in GAAP or the relevant accounting practices orreference periods and its auditors (or, if appropriate, the auditors of theObligor) deliver to the Agent:

 

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

 

(ii)                                   sufficient information, in form and substance as maybe reasonably required by the Agent, to enable the Lenders to determine whetherClause 24 (*Financial covenants*)has been complied with, to determine any other relevant matter set out in thisAgreement and/or to make an accurate comparison between the financial positionindicated in those financial statements and that Obligor’s Original FinancialStatements.

 

Anyreference in this Agreement to those financial statements shall be construed asa reference to those financial statements as adjusted to reflect the ApplicableAccounting Principles.

 

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

 

23.4                     **Information: miscellaneous**

 

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

 

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

 

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

 

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

 

23.5                     **Notification of default**

 

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

 

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

 

23.6                     **“Know your customer” checks**

 

(a)                            If:

 

(i)                                      the introduction of or any change in (or in theinterpretation, administration or application of) any law or regulation madeafter the date of this Agreement;

 

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

 

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

 

obligesthe Agent or any Lender (or, in the case of paragraph (iii) above, anyprospective new Lender) to comply with “know your customer” or similaridentification procedures in circumstances where the necessary information isnot already available to it, each Obligor shall promptly upon the request ofthe Agent or any Lender supply, or procure the supply of, such documentationand other evidence as is reasonably requested by the Agent (for itself or onbehalf of any Lender) or any Lender (for itself or, in the case of the eventdescribed in paragraph (iii) above, on behalf of any prospective newLender) in order for the Agent, such Lender or, in the case of the eventdescribed in paragraph (iii) above, any prospective new Lender to carryout and be satisfied it has complied with all necessary “know your customer” orother similar checks under all applicable laws and regulations pursuant to thetransactions contemplated in the Finance Documents.

 

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

 

(c)                            The Company shall, by not less than 10 Business Days’prior written notice to the Agent, notify the Agent (which shall promptlynotify the Lenders) of its intention to request that one of its Subsidiariesbecomes an Additional Obligor pursuant to Clause 28 (*Changes to the Obligors*).

 

(d)                           Following the giving of any notice pursuant toparagraph (c) above, if the accession of such Additional Obligor obligesthe Agent or any Lender to comply with “know your customer” or similaridentification procedures in circumstances where the necessary information isnot already 

 

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

 

24.                           **Financial covenants**

 

24.1                     **Financial condition**

 

The Company shall ensurethat:

 

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

 

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

 

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

 
| **Period**                                                     | ** ** | **Net Debt: EBITDA** | ** ** | **EBITDA: Net Interest  Costs** | ** ** | **Cash Generated for  Financing: Debt  Service** | ** ** |
|----------------------------------------------------------------|------------|--------------------------------|------------|-------------------------------------------|------------|-----------------------------------------------------------------|------------|
| 30  September 2008 to and including 31 December 2008 |       | 4.00:1.00                      |       |                                      |       |                                                            |       |
| 31  December 2008                                         |       |                           |       | 2.75:1.00                                 |       | 1.00:1.00                                                       |       |
| 1  January 2009 to and including 31 December 2009    |       | 4.00:1.00                      |       | 3.00:1.00                                 |       | 1.00:1.00                                                       |       |
| 1  January 2010 to and including 31 December 2010    |       | 3.50:1.00                      |       | 3.50:1.00                                 |       | 1.10:1.00                                                       |       |
| Thereafter                                                     |       | 3.00:1.00                      |       | 4.00:1.00                                 |       | 1.10:1.00                                                       |       |

 

24.2                     **Definitions**

 

Inthis Clause 24.2:

 

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

 

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expenditure(and including the capital element of any expenditure or obligation incurred inconnection with a Finance Lease).

 

“**Cash Generated for Financing**” means, inrespect of any Relevant Period (the “**CurrentRelevant Period**”), EBITDA for that Relevant Period after:

 

(a)                                   adding the amount of any decrease (and deducting theamount of any increase) in Working Capital for that Relevant Period;

 

(b)                                  adding the amount of any cash receipts (and deductingthe amount of any cash payments) during that Relevant Period in respect of anyExceptional Items not already taken account of in calculating EBITDA for anyRelevant Period (other than, in the case of cash receipts, Net Sale Proceeds orInsurance Proceeds applied in prepayment of the Facilities);

 

(c)                                   adding the amount of any cash receipts during thatRelevant Period in respect of any Tax rebates or credits and deducting theamount actually paid or due and payable in respect of Taxes during thatRelevant Period by any member of the Group;

 

(d)                                  adding (to the extent not already taken into accountin determining EBITDA) the amount of any dividends or other profitdistributions received in cash by any member of the Group during that RelevantPeriod from any entity which is itself not a member of the Group and deducting(to the extent not already deducted in determining EBITDA) the amount of anydividends paid in cash during the Relevant Period to minority shareholders inmembers of the Group;

 

(e)                                   adding the amount of any increase in provisions, othernon-cash debits and other non-cash charges (which are not Current Assets orCurrent Liabilities) and deducting the amount of any non-cash credits (whichare not Current Assets or Current Liabilities) in each case to the extent takeninto account in establishing EBITDA;

 

(f)                                     deducting the amount of any Capital Expenditureactually made (or due to be made) during that Relevant Period by any member ofthe Group and the aggregate of any cash consideration paid for, or the cashcost of, any Permitted Acquisitions and Permitted Joint Ventures except (in thecase) to the extent funded from;

 

(i)                                  Cash Generated for Financing in the Relevant Periodending immediately prior to the first day of the Current Relevant Period (the “**Previous Relevant Period**”) less DebtService for the Previous Relevant Period;

 

(ii)                               Net Sale Proceeds or Insurance Proceeds permitted tobe retained for this purpose; or

 

(iii)                            new equity or Financial Indebtedness subordinated tothe Facilities on terms acceptable to the Majority Lenders (acting reasonably)and received from a person which is not a member of the Group; and

 

(g)                                  deducting the amount of any cash costs of PensionItems during that Relevant Period to the extent not taken into account inestablishing EBITDA,

 

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andso that no amount shall be added (or deducted) more than once and there shallbe excluded the effect of all cash movements associated with the JV Costs up toan amount not exceeding €8,000,000.

 

“**Current Assets**” means the aggregate (on aconsolidated basis) of all inventory, work in progress, trade and otherreceivables of each member of the Group including prepayments in relation tooperating items and sundry debtors (but excluding Cash and Cash EquivalentInvestments) maturing within twelve months from the date of computation but **excluding** amounts in respect of:

 

(a)                                   receivables in relation to Tax;

 

(b)                                  Exceptional Items and other non-operating items;

 

(c)                                   insurance claims; and

 

(d)                                  any interest owing to any member of the Group.

 

“**Current Liabilities**” means the aggregate(on a consolidated basis) of all liabilities (including trade creditors,accruals and provisions) of each member of the Group falling due within twelvemonths from the date of computation but **excluding**amounts in respect of:

 

(a)                                   liabilities for Debt, other Financial Indebtedness orpensions and Interest Expenses;

 

(b)                                  liabilities for Tax;

 

(c)                                   Exceptional Items and other non-operating items; and

 

(d)                                  insurance claims.

 

“**Debt**” means, at any time, the aggregateoutstanding principal, capital or nominal amount (and any fixed or minimumpremium payable on prepayment (to the extent the relevant member of the Grouphas taken action that will result in such premium being required to be paid) orredemption) of Financial Indebtedness of members of the Group but excluding:

 

(a)                                   any indebtedness referred to in paragraphs (f), (g) or(i) of the definition of Financial Indebtedness (provided that, inrelation to paragraphs (f) and (i) of such definition, only to theextent such indebtedness is not classified as borrowings under IFRS);

 

(b)                                  any guarantee in respect of Financial Indebtedness tothe extent such guarantee is not classified as a borrowing under IFRS; and

 

(c)                                   any Financial Indebtedness subordinated to theFacilities under the Subordination Agreement or otherwise on terms acceptableto the Majority Lenders (acting reasonably) including, without limitation, anysubordinated shareholder loans.

 

“**Debt Service**” means, in respect of anyRelevant Period, the aggregate of:

 

(a)                                   Interest Expenses for that Relevant Period;

 

(b)                                  the aggregate of all scheduled repayments of Debtfalling due during that Relevant Period but excluding:

 

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(i)                                  any amounts falling due under any overdraft orrevolving facility (including, without limitation, Facility B and any AncillaryFacility) and which were available for simultaneous redrawing according to theterms of that facility;

 

(ii)                               any such obligations owed to any member of the Group;and

 

(iii)                            any prepayment of Debt existing on the date of thisAgreement which is required to be repaid under the terms of this Agreement; and

 

(c)                                   the amount of the capital element of any payments inrespect of that Relevant Period payable under any Finance Lease entered into byany member of the Group,

 

andso that no amount shall be included more than once.

 

“**EBITDA**” means, in respect of any RelevantPeriod, the consolidated operating profit of the Group before taxation(excluding the results from discontinued operations):

 

(a)                                   **before deducting** any Net Interest Expenses and other finance chargesin respect of Financial Indebtedness;

 

(b)                                  **not including** any accrued interest owing to any member of theGroup;

 

(c)                                   **before taking** into account any Exceptional Items (and after addingthe amount of any profit which would have been generated by Kemira Pigments inthat Relevant Period but for the strikes that occurred in that Relevant Period,in each case as referred to in the KPMG Supplementary Report);

 

(d)                                  **before deducting** JV Costs up to an amount not exceeding €8,000,000(for the avoidance of doubt, JV Costs exceeding €8,000,000 shall be deducted tothe extent otherwise required to be deducted pursuant to the terms of thisAgreement);

 

(e)                                   **after deducting** the amount of any profit (or adding back the amountof any loss) of any member of the Group which is attributable to minorityinterests;

 

(f)                                     plus or minus the Group’s share of the profits orlosses (after finance costs and tax) of Non-Group Entities (**after deducting** the amount of any profit ofany Non-Group Entity to the extent that the amount of the profit included inthe financial statements of the Group exceeds the amount actually received incash by members of the Group through distributions by the Non-Group Entity);

 

(g)                                  **before taking into account** any unrealised gains or losses on any derivativeinstrument;

 

(h)                                  **before taking into account** any gain or loss on the disposal or revaluation ofassets (other than in the ordinary course of trading);

 

(i)                                      before taking into account any Pension Items;

 

(j)                                      **after adding back** any amount attributable to the amortisation,depreciation or impairment of assets of members of the Group (and taking noaccount of the reversal of any previous impairment charge made in that RelevantPeriod); and

 

(k)                                   **after adding back**, to the extent deducted, any non-recurring fees,expenses or charges paid in relation to (A) any restructuring, providedthat it has a future identifiable benefit 

 

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for the operation of the Group (as approved bythe Agent in consultation with the Lenders) and the amount added back does notexceed €10,000,000 in any financial year of the Company or €25,000,000 from thedate of this Agreement; and (B) any Permitted Acquisition or PermittedJoint Venture,

 

ineach case, to the extent added, deducted or taken into account, as the case maybe, for the purposes of determining operating profits of the Group beforetaxation.

 

“**Exceptional Items**” means any exceptional,one off, non-recurring or extraordinary items (including without limitation anylay-off and other restructuring costs and any additional pension costs relatingthereto, in each case incurred by Kemira Pigments and as referred to in theKPMG Supplementary Report).

 

“**Financial Year**” means the annual accountingperiod of the Group.

 

“**Interest Expenses**” means, for any RelevantPeriod, the aggregate amount of the accrued interest, commission, fees,discounts, prepayment fees, premiums or charges and other finance payments inrespect of Debt (including, for the avoidance of doubt, any FinancialIndebtedness subordinated to the Facilities) whether paid or payable (unlesscapitalised or included pursuant to paragraph (d) below) by any member ofthe Group (calculated on a consolidated basis) in respect of that RelevantPeriod:

 

(a)                                   **including** any upfront fees or costs which are not capitalised;

 

(b)                                  **including**the interest (but not the capital) element of paymentsin respect of Finance Leases;

 

(c)                                   **including** any commission, fees, discounts and other financepayments payable by (and deducting any such amounts payable to) any member ofthe Group under any interest rate hedging arrangement;

 

(d)                                  **including** the amortisation of any capitalised finance payments;and

 

(e)                                   taking no account of any unrealised gains or losses onany derivative instruments,

 

andso that no amount shall be added (or deducted) more than once.

 

“**Net Debt**” means, at any time, the aggregateamount of all obligations of members of the Group for or in respect of Debt atthat time but:

 

(a)                                   **excluding**any such obligations to any other member of the Group;

 

(b)                                  including, in the case of Finance Leases only, theircapitalised value; and

 

(c)                                   **deducting** the aggregate amount of Cash and Cash EquivalentInvestments held by any member of the Group at that time,

 

andso that no amount shall be included or excluded more than once.

 

“**Net Interest Expenses**” means, for anyRelevant Period, the Interest Expenses for that Relevant Period after **deducting** any interest or any otherfinancial income payable in that Relevant Period to any member of the Group onany Cash or Cash Equivalent Investment.

 

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“**Non-Group Entity**” means any investment orentity (which is not itself a member of the Group (including associates andJoint Ventures)) in which any member of the Group has an ownership interest.

 

“**Pension Items**” means any income or chargeattributable to a post-employment benefit scheme other than the current servicecosts and any past service costs and curtailments and settlements attributableto the scheme.

 

“**Working Capital**” means, on any date,Current Assets less Current Liabilities.

 

24.3                     **Financial covenant calculations**

 

(a)                                   Capital Expenditure, Cash Generated for Financing,Current Assets, Current Liabilities, Debt, Debt Service, EBITDA, ExceptionalItems, Interest Expenses, Net Interest Expenses, Net Debt and WorkingCapital shall be calculated and interpreted on a consolidated basis inaccordance with the Applicable Accounting Principles, unless expressly providedto the contrary, and shall be expressed in euro.

 

(b)                                  Capital Expenditure, Cash Generated for Financing,EBITDA, Interest Expenses, Net Interest Expenses, Net Debt and WorkingCapital shall be determined (except as needed to reflect the terms of thisClause 24) from the financial statements of the Group and ComplianceCertificates delivered under Clause 23.1 (*Financialstatements*), and Clause 23.2 (*ComplianceCertificate*).

 

(c)                                   For the purpose of this Clause 24, an amountoutstanding or repayable on a particular day in a currency other than euroshall on that day be taken into account in its euro equivalent at the rate ofexchange that would have been used had an audited consolidated balance sheet ofthe Group been prepared as at that day in accordance with the ApplicableAccounting Principles.

 

(d)                                  For the purpose of this Clause 24, no item shall beincluded or excluded more than once in any calculation.

 

(e)                                   To the extent that any period prior to the date offirst Utilisation of any Facility is included in any Relevant Period in Clause24.1 (*Financial condition*):

 

(i)                                  Net Interest Expenses for the period from thebeginning of the Relevant Period until the date of first Utilisation of anyFacility shall be calculated on a pro forma basis on the basis of the actualNet Interest Expenses from the date of first Utilisation of any Facility untilthe end of the Relevant Period; and

 

(ii)                               EBITDA for the period from the beginning of theRelevant Period until the date of first Utilisation of any Facility shall bethe actual earnings before interest, tax, depreciation and amortisationcalculated using the same principles set out in this Clause 24 for thecalculation of EBITDA.

 

(f)                                     The Company shall provide the Agent with the financialinformation and pro forma computations necessary to calculate these items.

 

(g)                                  If any Permitted Acquisition occurs during a RelevantPeriod in relation to a business or company and the underlying business orcompany is not subsequently disposed of 

 

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during that Relevant Period (an “**Acquired Entity**”), the Acquired Entity’searnings before interest, tax, depreciation and amortisation and cash generatedfor financing (calculated using the principles set out in this Clause 24 forthe calculation of EBITDA and Cash Generated for Financing, respectively) inrespect of the part of the Relevant Period before its acquisition shall beincluded in determining EBITDA and Cash Generated for Financing for thatRelevant Period.

 

(h)                                  If any Permitted Disposal occurs during a RelevantPeriod in relation to a business or company (a “**Sold Entity**”), the Sold Entity’s earnings before interest,tax, depreciation and amortisation and cash generated for financing (calculatedusing the principles set out in this Clause 24 for the calculation of EBITDAand Cash Generated for Financing, respectively) in respect of the part of theRelevant Period before its disposal shall be excluded in determining EBITDA andCash Generated for Financing for that Relevant Period.

 

(i)                                      Net Interest Expenses and Debt Service shall beadjusted to reflect the assumption of debt relating to any Acquired Entity orrepayment of debt relating to any Sold Entity.

 

25.                           **General undertakings**

 

Theundertakings in this Clause 25 remain in force from the date of this Agreementfor so long as any amount is outstanding under the Finance Documents or anyCommitment is in force.

 

25.1                     **Authorisations**

 

(a)                            Each Obligor shall promptly:

 

(i)                                      obtain, comply with and do all that is necessary tomaintain in full force and effect; and

 

(ii)                                   on request by the Agent, supply certified copies tothe Agent of,

 

anyAuthorisation required under any law or regulation of its jurisdiction ofincorporation to enable it to perform its obligations under the FinanceDocuments and to ensure, subject to the Legal Reservations, the legality,validity, enforceability or admissibility in evidence in its jurisdiction ofincorporation of any Finance Document.

 

25.2                     **Compliance with laws**

 

EachObligor shall comply in all respects with all laws to which it is subject, iffailure so to comply would be reasonably expected to have a Material AdverseEffect.

 

25.3                     **Negative pledge**

 

(a)                            No Obligor shall (and the Company shall ensure that noother member of the Group will) create or permit to subsist any Security orQuasi Security over any of its assets.

 

(b)                           Paragraph (a) does not apply to any Security orQuasi Security which is Permitted Security.

 

25.4                     **Disposals**

 

(a)                            No Obligor shall (and the Company shall ensure that noother member of the Group will) enter into a single transaction or a series oftransactions (whether related or not and whether voluntary or involuntary) tosell, lease, transfer or otherwise dispose of any asset.

 

(b)                           Paragraph (a) above does not apply to any sale,lease, transfer or other disposal which is a Permitted Disposal or a PermittedTransaction.

 

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25.5                     **Merger**

 

NoObligor shall (and the Company shall ensure that no other member of the Groupwill) enter into any amalgamation, demerger, merger or corporate reconstructionwithout the prior written consent of the Majority Lenders other than aPermitted Transaction.

 

25.6                     **Change of business**

 

TheCompany shall procure that no substantial change is made to the general natureof the business of the Group taken as a whole from that carried on at the dateof this Agreement.

 

25.7                     **Insurance**

 

EachObligor shall (and the Company shall ensure that each other member of the Groupwill) maintain insurances on and in relation to its business and assets withreputable underwriters or insurance companies against those risks, and to theextent, usually insured against by prudent companies located in the same or asimilar location and carrying on a similar business.

 

25.8                     **Environmental undertakings**

 

Each Obligor shall (and theCompany shall ensure that each other member of the Group will):

 

(a)                                   comply with all Environmental Laws to which it issubject;

 

(b)                                  obtain all Environmental Licences required inconnection with its business; and

 

(c)                                   comply with the terms of all those EnvironmentalLicences,

 

ineach case where failure to do has or is reasonably likely to have a MaterialAdverse Effect.

 

25.9                     **Environmental claims**

 

EachObligor shall (and the Company shall ensure that each other member of the Groupwill) promptly notify the Agent of any claim, notice or other communicationreceived by it in respect of any actual or alleged breach of or liability underEnvironmental Law which, if substantiated, has or is reasonably likely to havea Material Adverse Effect.

 

25.10               **Assets**

 

EachObligor shall (and the Company shall ensure that each other member of the Groupwill) maintain in good working order and condition (ordinary wear and tearexcepted) all its assets necessary for the conduct of its business as conductedfrom time to time.

 

25.11               **Pari passu**

 

EachObligor shall ensure that its obligations under the Finance Documents rank atall times at least *pari passu* inright of priority and payment with the claims of all its other unsecured andunsubordinated creditors, except for obligations mandatorily preferred by lawapplying to companies generally.

 

25.12               **Loans or credit**

 

(a)                            No Obligor shall (and the Company shall ensure that noother member of the Group will) be a creditor in respect of any FinancialIndebtedness.

 

(b)                           Paragraph (a) above does not apply to a PermittedLoan or a Permitted Transaction.

 

25.13               **Guarantees**

 

(a)                            No Obligor shall (and the Company shall ensure that noother member of the Group will) issue or allow to remain outstanding anyguarantee in respect of any liability or obligation of any person.

 

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(b)                           Paragraph (a) above does not apply to a PermittedGuarantee.

 

25.14               **Financial Indebtedness**

 

(a)                            No Obligor shall (and the Company shall ensure that noother member of the Group will) incur (or agree to incur) or allow to remainoutstanding any Financial Indebtedness.

 

(b)                           Paragraph (a) above does not apply to FinancialIndebtedness that is Permitted Financial Indebtedness or a PermittedTransaction.

 

25.15               **Restricted payments**

 

TheCompany shall not:

 

(i)                                      declare, pay or make any dividend or other payment ordistribution of any kind on or in respect of any of its shares; or

 

(ii)                                   reduce, return, purchase, repay, cancel or redeem anyof its shares,

 

providedthat the Company may take such action at any time when the ratio of Net Debt onthe most recent Quarter Date to EBITDA for the Relevant Period ending on thatQuarter Date is less than or equal to 2.50:1.00 and that immediately after anysuch action is taken, such ratio will be less than or equal to 2.50:1.00.

 

25.16               **Acquisitions**

 

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

 

(i)                                      acquire any share in, or any security issued by, anyperson, or any interest therein (or agree to do any of the foregoing); or

 

(ii)                                   acquire any business or going concern, or the whole orsubstantially the whole of the assets or business of any person, or any assetsthat constitute a division or operating unit of the business of any person (oragree to do any of the foregoing).

 

(b)                           Paragraph (a) above does not apply to anyacquisition or investment which is a Permitted Acquisition or a PermittedTransaction.

 

25.17               **Arm’s length terms**

 

(a)                            No Obligor shall (and the Company shall ensure that noother member of the Group will) enter into any contract or arrangement with orfor the benefit of any other person which is not a member of the Group(including any disposal to that person) other than in the ordinary course ofbusiness and on arm’s length terms or better.

 

(b)                           Paragraph (a) above does not apply to:

 

(i)                                      any JV Costs up to an aggregate amount of £8,000,000;and

 

(ii)                                   a Permitted Transaction.

 

(c)                            The Company shall ensure that no member of the Groupwhich is not an Obligor shall enter into any contract or arrangement regardinga sale, lease, transfer or other disposal or a loan, credit or other arrangementhaving a similar effect with or for the benefit of any Obligor on terms lessadvantageous to that Obligor than arm’s length terms.

 

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25.18               **Hedging**

 

(a)                            The Company shall ensure that the hedging required bythe Hedging Letter is effected within 90 days after the date of firstutilisation of any Facility (and is maintained in effect) in accordance withthe terms of the Hedging Letter.

 

(b)                           No Obligor shall (and the Company shall ensure that noother member of the Group will) enter (or agree to enter) into any derivativetransaction.

 

(c)                            Paragraph (b) above does not apply to anyderivative transaction which is a Permitted Hedging Transaction.

 

25.19               **Pensions**

 

TheCompany shall ensure that all pension schemes maintained or operated by, or forthe benefit of, any member of the Group and/or any of its employees:

 

(i)                                      are maintained and operated in all material respectsin accordance with all applicable laws and contracts and their governingprovisions; and

 

(ii)                                   are funded substantially in accordance with thegoverning provisions of the scheme with any funding shortfall advised byactuaries of recognised standing being rectified in accordance with thosegoverning provisions.

 

25.20               **Taxes**

 

(a)                            Each Obligor shall (and the Company shall ensure thateach other member of the Group will) pay all material Taxes required to be paidby it within the time period allowed for payment without incurring any materialpenalties for non-payment.

 

(b)                           Paragraph (a) above does not apply to any Taxes:

 

(i)                                      being contested by the relevant member of the Group ingood faith and in accordance with the relevant procedures;

 

(ii)                                   for which adequate reserves are being maintained inaccordance with, and to the extent required by, GAAP; and

 

(iii)                                where payment can be lawfully withheld and will notresult in the imposition of any penalty nor in any Security ranking in priorityto the claims of any Finance Party under any Finance Document or to anySecurity created under any Security Document.

 

(c)                            No member of the Group may change its residence forTax purposes.

 

25.21               **Joint Ventures**

 

(a)                            No Obligor shall (and the Company shall ensure that nomember of the Group will):

 

(i)                                      invest in or acquire (or agree to invest in oracquire) any share in, or any security issued by, any Joint Venture or anyinterest therein; or

 

(ii)                                   transfer any assets, or lend, to or give a guarantee,Security or Quasi Security for, or otherwise underwrite, the obligations of, orincur any other liability (whether actual or contingent and whether present orfuture) in respect of, a Joint Venture (or agree to do any of the foregoing).

 

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(b)                           Paragraph (a) above does not apply to anyacquisition of or investment in, or transfer or loan to, or guarantee, Securityor Quasi Security for the obligations of, or any other liability in respect of,the Ti02 Joint Venture or a Permitted Joint Venture.

 

25.22               **Guarantees and Security**

 

(a)                            The Company shall:

 

(i)                                      within 30 days of a member of the Group becoming aMaterial Subsidiary, ensure that the relevant member of the Group becomes anAdditional Guarantor in accordance with Clause 28 (*Changes to the Obligors*).

 

(b)                           The Company need only perform its obligations underparagraph (a) above if it is not unlawful for the relevant person tobecome a Guarantor and that person becoming a Guarantor would not result inpersonal liability for that person’s directors or other management. EachObligor must use, and must procure that the relevant person uses, allreasonable endeavours lawfully available to avoid any such unlawfulness orpersonal liability. This includes agreeing to a limit on the amount guaranteed.The Agent may (but shall not be obliged to) agree to such a limit if, in itsopinion, to do so would avoid the relevant unlawfulness or personal liability.

 

(c)                            Each Obligor shall (and the Company shall ensure thateach other member of the Group will), at its own expense, promptly take allsuch action as the Agent or the Security Agent may require:

 

(i)                                      for the purpose of perfecting or protecting any of theFinance Parties’ rights under, and preserving the Security intended to becreated or evidenced by, any of the Finance Documents; and

 

(ii)                                   for the purpose of facilitating the realisation of anyof that Security,

 

includingthe execution of any transfer, conveyance, assignment or assurance of any assetand the giving of any notice, order or direction and the making of anyregistration which the Agent or the Security Agent may reasonably require.

 

(d)                           The Company shall ensure that at all times:

 

(i)                                      the aggregate of the unconsolidated net assets(excluding any intragroup loans) of the Guarantors (without double counting andexcluding any interests in any Subsidiaries which are Guarantors) exceeds 80per cent. of the consolidated net assets of the Group; and

 

(ii)                                   the aggregate of the unconsolidated revenues or EBITDAof the Guarantors (without double counting and excluding any dividends or otherdistributions from Subsidiaries which are Guarantors) exceeds 80 per cent. ofthe consolidated revenues or EBITDA of the Group,

 

ineach case calculated by reference to the then most recent annual and quarterlyunaudited unconsolidated financial statements of each Guarantor and the thenmost recent annual and quarterly audited consolidated financial statements ofthe Group.

 

25.23               **Issue of shares**

 

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

 

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(i)                                      issue any share to any person; or

 

(ii)                                   grant to any person any conditional or unconditionaloption, warrant or other right to call for the issue or allotment of, subscribefor, purchase or otherwise acquire any share of any member of the Group(including any right of pre-emption, conversion or exchange), or alter anyright attaching to any share capital of any member of the Group.

 

(b)                           Paragraph (a) above does not apply to:

 

(i)                                      any issue of shares by a member of the Group to itsimmediate holding company; and

 

(ii)                                   any issue of shares by a member of the Group which isnot wholly-owned, if such shares are issued pro rata to its shareholders.

 

26.                           **Events of Default**

 

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

 

26.1                     **Non-payment**

 

AnObligor does not pay on the due date any amount payable pursuant to a FinanceDocument at the place at and in the currency in which it is expressed to bepayable unless:

 

(a)                                   its failure to pay is caused by:

 

(i)                                  administrative or technical error; or

 

(ii)                               a Disruption Event; and

 

(b)                                  payment is made within 3 Business Days of its duedate.

 

26.2                     **Financial covenants**

 

Anyrequirement of Clause 24 (*Financialcovenants*) is not satisfied.

 

26.3                     **Other obligations**

 

(a)                            Any person (other than a Finance Party) does notcomply with Clauses 25.4 (*Disposals*),25.5 (*Merger*), 25.14 (*Financial Indebtedness*), 25.16 (*Acquisitions*), 25.21 (*Joint ventures*) and 25.22 (*Guarantees and Security*) (other thanparagraph (c) thereof).

 

(b)                           An Obligor does not comply with any provision of theFinance Documents (other than those referred to in Clause 26.1 (*Non-payment*) and Clause 26.2 (*Financial covenants*) and paragraph (a) above),unless the failure to comply is capable of remedy and is remedied within 20Business Days of the earlier of the Agent giving notice to the Company or theCompany becoming aware of the failure to comply.

 

26.4                     **Misrepresentation**

 

Anyrepresentation or statement made or deemed to be made by an Obligor in theFinance Documents or any other document delivered by or on behalf of anyObligor under or in connection with any Finance Document is or proves to havebeen incorrect or misleading in any material respect when made or deemed to bemade unless the facts or circumstances underlying the misrepresentation arecapable of remedy and are remedied within the earlier of 20 Business Days ofthe Agent giving notice to the Company and the Company becoming aware of themisrepresentation.

 

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26.5                     **Cross default**

 

(a)                            Any Financial Indebtedness of any member of the Groupis not paid when due nor within any originally applicable grace period.

 

(b)                           Any Financial Indebtedness of any member of the Groupis declared to be or otherwise becomes due and payable prior to its specifiedmaturity as a result of an event of default (however described).

 

(c)                            Any commitment for any Financial Indebtedness of anymember of the Group is cancelled or suspended by a creditor of any member ofthe Group as a result of an event of default (however described).

 

(d)                           Any creditor of any member of the Group becomesentitled to declare any Financial Indebtedness of any member of the Group dueand payable prior to its specified maturity as a result of an event of default(however described).

 

(e)                            No Event of Default will occur under this Clause 26.5if the aggregate amount of Financial Indebtedness or commitment for FinancialIndebtedness falling within paragraphs (a) to (d) above is less than€1,000,000 (or its equivalent in any other currency or currencies).

 

26.6                     **Insolvency**

 

(a)                            A member of the Group is unable or admits inability topay its debts as they fall due, suspends making payments on any of its debtsor, by reason of actual or anticipated financial difficulties, commencesnegotiations with one or more of its creditors with a view to rescheduling anyof its indebtedness.

 

(b)                           The value of the assets of any member of the Group isless than its liabilities (taking into account contingent and prospectiveliabilities).

 

(c)                            A moratorium is declared in respect of anyindebtedness of any member of the Group.

 

26.7                     **Insolvency proceedings**

 

(a)                            In relation to a member of the Group having its seatin Germany:

 

(i)                                      a petition for insolvency proceedings in respect ofits assets (*Antrag auf Eröffnung einesInsolvenzverfahrens*) is filed, threatened to be filed or any eventoccurs which constitutes a cause for the initiation of insolvency proceedings (*Eröffnungsgrund*) as set out insections 17 et seq. of the German Insolvency Code (*Insolvenzordnung*); or

 

(ii)                                   actions are taken pursuant to section 21 of theGerman Insolvency Code by a competent court; or

 

(iii)                                it commences negotiations with one or more of itscreditors with a view to the general readjustment or rescheduling of itsindebtedness; or

 

(b)                           with respect to any member of the Group locatedoutside Germany, any corporate action, legal proceedings or other procedure orstep is taken in relation to:

 

(i)                                      the suspension of payments, a moratorium of any indebtedness,winding-up, dissolution, administration or reorganisation (by way of voluntaryarrangement, scheme of arrangement or otherwise) of any member of the Groupother than a solvent liquidation or reorganisation of any member of the Groupwhich is not an Obligor;

 

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(ii)                                   a composition, compromise, assignment or arrangementwith any creditor of any member of the Group;

 

(iii)                                the appointment of a liquidator (other than in respectof a solvent liquidation of a member of the Group which is not an Obligor),receiver, administrative receiver, administrator, compulsory manager or othersimilar officer in respect of any member of the Group or any of its assets; or

 

(iv)                               enforcement of any Security over any assets of anymember of the Group, or

 

(c)                            any analogous procedure or step is taken in anyjurisdiction,

 

providedthat no Event of Default shall have occurred under this Clause 26.7 in respectof (A) an amalgamation, demerger, merger, consolidation or corporatereconstruction on a solvent basis of a member of the Group which is not anObligor, or (B) any winding-up petition which is frivolous or vexatiousand is discharged, stayed or dismissed within 14 days of commencement and priorto its advertisement.

 

(d)                           unless the context otherwise requires, a reference ineach Finance Document in respect of an entity incorporated in Finland to:

 

(i)                                      winding-up, administration or dissolution includes anydeclaration of bankruptcy (*asetettukonkurssiin*);

 

(ii)                                   an insolvency includes a bankruptcy (*konkurssi*) and any business restructuring(*yrityssaneeraus*);

 

(iii)                                a liquidator in bankruptcy includes a “*pesänhoitaja*”;

 

(iv)                               an administrator includes a “*selvittäjä*” and “*valvoja*” in a business restructuring (*yrityssaneeraus*); and

 

(v)                                  an attachment includes a “*takavarikko*” and/or any other “*turvaamistoimi*” granted in accordance with Finnish law.

 

26.8                     **Creditors’ process**

 

Anyexpropriation, attachment, sequestration, distress or execution or anyanalogous process in any jurisdiction affects any asset or assets of a memberof the Group and is not discharged within 5 Business Days.

 

26.9                     **Ownership of the Obligors**

 

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

 

26.10               **Unlawfulness**

 

Itis or becomes unlawful for an Obligor to perform any of its obligations underthe Finance Documents.

 

26.11               **Repudiation**

 

AnObligor repudiates a Finance Document or evidences an intention to repudiate aFinance Document.

 

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26.12               **Security and guarantees**

 

AnySecurity Document or any guarantee in, or any subordination under, any FinanceDocument is not in full force and effect or any Security Document does notcreate in favour of the Security Agent for the benefit of the Finance Parties,the Security which it is expressed to create fully perfected and with theranking and priority it is expressed to have in a manner and to an extent whichis or is reasonably likely to be materially adverse to the interests of theLenders under the Finance Documents.

 

26.13               **Material adverse change**

 

TheMajority Lenders (acting reasonably) determine that a Material Adverse Effectexists, has occurred or might reasonably be expected to occur.

 

26.14               **Litigation**

 

(a)                            Any litigation, arbitration, proceeding or dispute isstarted or threatened or there are any circumstances likely to give rise to anylitigation, arbitration, proceeding or dispute, in each case which, ifadversely determined, might reasonably be expected to have a Material AdverseEffect.

 

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

 

26.15               **Cessation of business**

 

AnyObligor suspends or ceases (or threatens to suspend or cease) to carry on allor a material part of its business except as part of a Permitted Merger,Permitted Transaction or a Permitted Disposal.

 

26.16               **Acceleration**

 

(a)                            On and at any time after the occurrence of an Event ofDefault which is continuing the Agent may, and shall if so directed by theMajority Lenders, by notice to the Company:

 

(i)                                      cancel the Total Commitments whereupon they shallimmediately be cancelled;

 

(ii)                                   declare that all or part of the Utilisations, togetherwith accrued interest, and all other amounts accrued or outstanding under theFinance Documents be immediately due and payable, whereupon they shall becomeimmediately due and payable;

 

(iii)                                declare that all or part of the Utilisations bepayable on demand, whereupon they shall immediately become payable on demand bythe Agent on the instructions of the Majority Lenders; and/or

 

(iv)                               declare that full cash cover in respect of each Letterof Credit or Bank Guarantee is immediately due and payable whereupon it shallbecome immediately due and payable.

 

(b)                           Promptly after being notified by the Agent of theAcceleration Date, each Ancillary Lender shall by notice to the Company:

 

(i)                                      cancel its Ancillary Commitment whereupon it shallimmediately be cancelled;

 

(ii)                                   declare that all or the corresponding part of theutilisations under any Ancillary Facility provided by that Ancillary Lender,together with accrued interest, full cash cover in respect of all or thecorresponding part of the contingent liabilities of that Ancillary Lender underthat Ancillary Facility, and all or the corresponding part of all other amounts

 

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accrued or outstanding in respect of thatAncillary Facility be immediately due and payable, whereupon they shall becomeimmediately due and payable; and/or

 

(iii)                                declare that all or the corresponding part of theutilisations under any Ancillary Facility provided by that Ancillary Lender,together with accrued interest, full cash cover in respect of all or thecorresponding part of the contingent liabilities of that Ancillary Lender underthat Ancillary Facility, and all or the corresponding part of all other amountsaccrued or outstanding in respect of that Ancillary Facility be payable upondemand, whereupon they shall immediately become payable on demand by thatAncillary Lender (on the instructions of the Agent, if so directed by theMajority Lenders).

 

(c)                            No Ancillary Lender may cancel the whole or any partof its Ancillary Commitment, declare that all or part of the utilisations underan Ancillary Facility provided by that Ancillary Lender be immediately due andpayable or require the payment of cash cover in respect of all or any part ofany contingent liabilities of that Ancillary Lender under an Ancillary Facilityunless the Agent has delivered a notice to the Company pursuant tosub-paragraph (ii) of paragraph (a) of this Clause 26.16.

 

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**SECTION ****9**

 

**CHANGESTO PARTIES**

 

27.                           **Changes to the Lenders**

 

27.1                     **Assignments and transfers by theLenders**

 

Subjectto this Clause 27, a Lender (the “**Existing****Lender**”) may:

 

(a)                                   assign any of its rights; or

 

(b)                                  transfer by novation any of its rights andobligations,

 

toanother bank or financial institution or to a trust, fund or other entity whichis regularly engaged in or established for the purpose of making, purchasing orinvesting in loans, securities or other financial assets (the “**New Lender**”).

 

27.2                     **Conditions of assignment or transfer**

 

(a)                            The consent of the Company is required for anassignment or transfer by an Existing Lender, unless the assignment or transferis (i) prior to the Syndication Date, provided the New Lender is on thelist of potential syndicate members agreed by the Company and the Agent, (ii) toanother Existing Lender or an Affiliate of a Existing Lender or (iii) madewhile an Event of Default is continuing.

 

(b)                           The consent of the Company to an assignment ortransfer must not be unreasonably withheld or delayed.  The Company will be deemed to have given itsconsent five Business Days after the Existing Lender has requested it unlessconsent is expressly refused by the Company within that time.

 

(c)                            The consent of the Company to an assignment ortransfer must not be withheld solely because the assignment or transfer mayresult in an increase to the Mandatory Cost.

 

(d)                           The consent of the Issuing Bank to an assignment ortransfer is required in accordance with paragraph (a) of Clause 7.2 (*Assignments and transfers*).

 

(e)                            An assignment will only be effective on:

 

(i)                                      receipt by the Agent of written confirmation from theNew Lender (in form and substance satisfactory to the Agent) that the NewLender will assume the same obligations to the other Finance Parties as itwould have been under if it was an Original Lender; and

 

(ii)                                   performance by the Agent of all necessary “know yourcustomer” or other similar checks under all applicable laws and regulations inrelation to such assignment to a New Lender, the completion of which the Agentshall promptly notify to the Existing Lender and the New Lender.

 

(f)                              A transfer will only be effective if the procedure setout in Clause 27.5 (*Procedure for transfer*)is complied with.

 

(g)                           Any assignment or transfer by an Existing Lender to aNew Lender shall only be effective if it transfers or assigns the ExistingLender’s share of each Facility pro rata.

 

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(h)                           If:

 

(i)                                      a Lender assigns or transfers any of its rights orobligations under the Finance Documents or changes its Facility Office; and

 

(ii)                                   as a result of circumstances existing at the date theassignment, transfer or change occurs, an Obligor would be obliged to make apayment to the New Lender or Lender acting through its new Facility Officeunder Clause 16 (*Tax gross-up andindemnities*) or Clause 17 (*IncreasedCosts*),

 

thenthe New Lender or Lender acting through its new Facility Office is onlyentitled to receive payment under those Clauses to the same extent as theExisting Lender or Lender acting through its previous Facility Office wouldhave been if the assignment, transfer or change had not occurred.

 

27.3                     **Assignment or transfer fee**

 

TheNew Lender shall, on the date upon which an assignment or transfer takeseffect, pay to the Agent (for its own account) a fee of €2,000.

 

27.4                     **Limitation of responsibility ofExisting Lenders**

 

(a)                            Unless expressly agreed to the contrary, an ExistingLender makes no representation or warranty and assumes no responsibility to aNew Lender for:

 

(i)                                      the legality, validity, effectiveness, adequacy orenforceability of the Finance Documents or any other documents;

 

(ii)                                   the financial condition of any Obligor;

 

(iii)                                the performance and observance by any Obligor of itsobligations under the Finance Documents or any other documents; or

 

(iv)                               the accuracy of any statements (whether written ororal) made in or in connection with any Finance Document or any other document,

 

andany representations or warranties implied by law are excluded.

 

(b)                           Each New Lender confirms to the Existing Lender andthe other Finance Parties that it:

 

(i)                                      has made (and shall continue to make) its ownindependent investigation and assessment of the financial condition and affairsof each Obligor and its related entities in connection with its participationin this Agreement and has not relied exclusively on any information provided toit by the Existing Lender in connection with any Finance Document; and

 

(ii)                                   will continue to make its own independent appraisal ofthe creditworthiness of each Obligor and its related entities whilst any amountis or may be outstanding under the Finance Documents or any Commitment is inforce.

 

(c)                            Nothing in any Finance Document obliges an ExistingLender to:

 

(i)                                      accept a re-transfer from a New Lender of any of therights and obligations assigned or transferred under this Clause 27; or

 

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(ii)                                   support any losses directly or indirectly incurred bythe New Lender by reason of the non-performance by any Obligor of itsobligations under the Finance Documents or otherwise.

 

27.5                     **Procedure for transfer**

 

(a)                            Subject to the conditions set out in Clause 27.2 (*Conditions of assignment or transfer*) atransfer is effected in accordance with paragraph (c) below when the Agentexecutes an otherwise duly completed Transfer Certificate delivered to it bythe Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon asreasonably practicable after receipt by it of a duly completed TransferCertificate appearing on its face to comply with the terms of this Agreementand delivered in accordance with the terms of this Agreement, execute thatTransfer Certificate.

 

(b)                           The Agent shall only be obliged to execute a TransferCertificate delivered to it by the Existing Lender and the New Lender once itis satisfied it has complied with all necessary “know your customer” or othersimilar checks under all applicable laws and regulations in relation to thetransfer to such New Lender.

 

(c)                            On the Transfer Date:

 

(i)                                      to the extent that in the Transfer Certificate theExisting Lender seeks to transfer by novation its rights and obligations underthe Finance Documents each of the Obligors and the Existing Lender shall bereleased from further obligations towards one another under the FinanceDocuments and their respective rights against one another under the FinanceDocuments shall be cancelled (being the “**DischargedRights and Obligations**”);

 

(ii)                                   each of the Obligors and the New Lender shall assumeobligations towards one another and/or acquire rights against one another whichdiffer from the Discharged Rights and Obligations only insofar as that Obligorand the New Lender have assumed and/or acquired the same in place of thatObligor and the Existing Lender;

 

(iii)                                the Agent, the Arranger, the Security Agent, the NewLender, the other Lenders, the Issuing Bank and any relevant Ancillary Lendersshall acquire the same rights and assume the same obligations betweenthemselves as they would have acquired and assumed had the New Lender been anOriginal Lender with the rights and/or obligations acquired or assumed by it asa result of the transfer and to that extent the Agent, the Arranger, theSecurity Agent, the Issuing Bank, any relevant Ancillary Lender and theExisting Lender shall each be released from further obligations to each otherunder the Finance Documents; and

 

(iv)                               the New Lender shall become a Party as a “Lender”.

 

27.6                     **Copy of Transfer Certificate toCompany**

 

TheAgent shall, as soon as reasonably practicable after it has executed a TransferCertificate, send to the Company a copy of that Transfer Certificate.

 

27.7                     **Disclosure of information**

 

AnyLender may disclose to any of its Affiliates and any other person:

 

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(a)                                   to (or through) whom that Lender assigns or transfers(or may potentially assign or transfer) all or any of its rights andobligations under this Agreement;

 

(b)                                  with (or through) whom that Lender enters into (or maypotentially enter into) any sub-participation in relation to, or any othertransaction under which payments are to be made by reference to, this Agreementor any Obligor;

 

(c)                                   to whom, and to the extent that, information isrequired to be disclosed by any applicable law or regulation; or

 

(d)                                  for whose benefit that Lender charges, assigns orotherwise creates Security (or may do so) pursuant to Clause 27.8 (*Security over Lenders’ rights*),

 

anyinformation about any Obligor, the Group and the Finance Documents as thatLender shall consider appropriate if, in relation to paragraphs (a), (b) and(d) (in respect of 26.8 (b) (*Creditors’process*)) above, the person to whom the information is to be givenhas entered into a Confidentiality Undertaking. This Clause supersedes any previous agreement relating to theconfidentiality of this information.

 

27.8                     **Security over Lenders’ rights**

 

Inaddition to the other rights provided to Lenders under this Clause 27, eachLender may without consulting with or obtaining consent from any Obligor, atany time charge, assign or otherwise create Security in or over (whether by wayof collateral or otherwise) all or any of its rights under any Finance Documentto secure obligations of that Lender including:

 

(a)                                   any charge, assignment or other Security to secureobligations to a federal reserve or central bank; and

 

(b)                                  in the case of any Lender which is a fund, any charge,assignment or other Security granted to any holders (or trustee orrepresentatives of holders) of obligations owed, or securities issued, by thatLender as Security for those obligations or securities,

 

exceptthat no such charge, assignment or Security shall:

 

(i)                                  release a Lender from any of its obligations under theFinance Documents or substitute the beneficiary of the relevant charge,assignment or Security for the Lender as a party to any of the FinanceDocuments; or

 

(ii)                               require any payments to be made by an Obligor or grantto any person any more extensive rights than those required to be made orgranted to the relevant Lender under the Finance Documents.

 

28.                           **Changes to the Obligors**

 

28.1                     **Assignments and transfer by Obligors**

 

NoObligor may assign any of its rights or transfer any of its rights orobligations under the Finance Documents.

 

28.2                     **Additional Borrowers**

 

(a)                            Subject to compliance with the provisions ofparagraphs (c) and (d) of Clause 23.6 (*“Know your customer” checks*), the Company may request thatany of its wholly owned Subsidiaries becomes an Additional Borrower.  That Subsidiary shall become an AdditionalBorrower if:

 

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(i)                                      all the Lenders participating in the relevant Facilityapprove the addition of that Subsidiary;

 

(ii)                                   the Company delivers to the Agent a duly completed andexecuted Accession Letter;

 

(iii)                                the Company confirms that no Default is continuing orwould occur as a result of that Subsidiary becoming an Additional Borrower; and

 

(iv)                               the Agent has received all of the documents and otherevidence listed in Part II of Schedule 2 (*Conditionsprecedent*) in relation to that Additional Borrower, each in form andsubstance satisfactory to the Agent.

 

(b)                           The Agent shall notify the Company and the Lenderspromptly upon being satisfied that it has received (in form and substancesatisfactory to it) all the documents and other evidence listed in Part IIof Schedule 2 (*Conditions precedent*).

 

28.3                     **Resignation of a Borrower**

 

(a)                            In this Clause 28.3 (*Resignationof a Borrower*), Clause 28.5 (*Resignationof a Guarantor*) and Clause 28.7 (*Resignationand release of Security on disposal*), “**Third Party Disposal**” means the disposal of an Obligor to aperson which is not a member of the Group where that disposal is permittedunder Clause 25.4 (*Disposals*) ormade with the approval of the Majority Lenders (and the Parent has confirmedthis is the case).

 

(b)                           If a Borrower is the subject of a Third PartyDisposal, the Company may request that such Borrower (other than the Company)ceases to be a Borrower by delivering to the Agent a Resignation Letter.

 

(c)                            The Agent shall accept a Resignation Letter and notifythe Company and the other Finance Parties of its acceptance if:

 

(i)                                      the Company has confirmed that no Default iscontinuing or would result from the acceptance of the Resignation Letter;

 

(ii)                                   the Borrower is under no actual or contingent obligationsas a Borrower under any Finance Documents;

 

(iii)                                where the Borrower is also a Guarantor (unless itsresignation has been accepted in accordance with Clause 28.5 (*Resignation of a Guarantor*)), itsobligations in its capacity as Guarantor continue to be legal, valid, bindingand enforceable and in full force and effect (subject to the LegalReservations) and the amount guaranteed by it as a Guarantor is not decreased(and the Company has confirmed this is the case); and

 

(iv)                               the Company has confirmed that it shall ensure thatany relevant Net Sale Proceeds will be applied in accordance with Clause 11.5 (*Mandatory prepayment — Net Sale Proceeds*).

 

(d)                           Upon notification by the Agent to the Company of itsacceptance of the resignation of a Borrower, that company shall cease to be aBorrower and shall have no further rights or obligations under the FinanceDocuments as a Borrower except that the resignation shall not take effect (andthe Borrower will continue to have rights and obligations under the FinanceDocuments) until the date on which the Third Party Disposal takes effect.

 

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(e)                            The Agent may, at the cost and expense of the Company,require a legal opinion from counsel to the Agent confirming the matters setout in paragraph (c)(iii) above and the Agent shall be under no obligationto accept a Resignation Letter until it has obtained such opinion in form andsubstance satisfactory to it.

 

28.4                     **Additional Guarantors**

 

(a)                            Subject to compliance with the provisions ofparagraphs (c) and (d) of Clause 23.6 (*“Know your customer” checks*), the Company may request thatany of its wholly owned Subsidiaries become an Additional Guarantor.  That Subsidiary shall become an AdditionalGuarantor if:

 

(i)                                      (except in the case of an Additional Guarantorincorporated in a jurisdiction of incorporation of an existing Obligor) theAgent approves the addition of that Subsidiary;

 

(ii)                                   the Company delivers to the Agent a duly completed andexecuted Accession Letter; and

 

(iii)                                the Agent has received all of the documents and otherevidence listed in Part II of Schedule 2 (*Conditionsprecedent*) in relation to that Additional Guarantor, each in formand substance satisfactory to the Agent.

 

(b)                           The Agent shall notify the Company and the Lenderspromptly upon being satisfied that it has received (in form and substancesatisfactory to it) all the documents and other evidence listed in Part IIof Schedule 2 (*Conditions precedent*).

 

28.5                     **Resignation of a Guarantor**

 

(a)                            The Company may request that a Guarantor (other thanthe Company) ceases to be a Guarantor by delivering to the Agent a ResignationLetter if that Guarantor is being disposed of by way of a Third Party Disposal(as defined in Clause 28.3 (*Resignation of aBorrower*)) and the Company has confirmed this is the case.

 

(b)                           The Agent shall accept a Resignation Letter and notifythe Company and the Lenders of its acceptance if:

 

(i)                                      the Company has confirmed that no Default iscontinuing or would result from the acceptance of the Resignation Letter;

 

(ii)                                   no payment is due from the Guarantor under Clause 21.1(*Guarantee and indemnity*);

 

(iii)                                where the Guarantor is also a Borrower, it is under noactual or contingent obligations as a Borrower and has resigned and ceased tobe a Borrower under Clause 28.3 (*Resignationof a Borrower*); and

 

(iv)                               the Company has confirmed that it shall ensure thatthe Net Sale Proceeds will be applied, in accordance with Clause 11.5 (*Mandatory Prepayment — Net Sale Proceeds*).

 

(c)                            The resignation of that Guarantor shall not beeffective until the date of the relevant Third Party Disposal at which timethat company shall cease to be a Guarantor and shall have no further rights orobligations under the Finance Documents as a Guarantor.

 

28.6                     **Repetition of Representations**

 

Deliveryof an Accession Letter constitutes confirmation by the relevant Subsidiary thatthe Repeating Representations and each of the representations set out inClauses 22.5 (*Validity and admissibility inevidence*), 22.7 (*Deduction of Tax*)and 22.8 (*No filing or stamp taxes*)are true 

 

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

 

28.7                     **Resignation and release of securityon disposal**

 

(a)                            If a Borrower or Guarantor is or is proposed to be thesubject of a Third Party Disposal then:

 

(i)                                      where that Borrower or Guarantor created Securitypursuant to any Finance Document over any of its assets or business in favourof the Security Agent, or Security pursuant to any Finance Document in favourof the Security Agent was created over the shares (or equivalent) of thatBorrower or Guarantor, the Security Agent may at the cost and request of theCompany, release those assets, business or shares (or equivalent) and issuecertificates of non-crystallisation;

 

(ii)                                   the resignation of that Borrower or Guarantor andrelated release of Security pursuant to any Finance Document referred to inparagraph (i) above shall not become effective until the date of thatdisposal; and

 

(iii)                                if the disposal of that Borrower or Guarantor is notmade, the Resignation Letter of that Borrower or Guarantor and the relatedrelease of Security referred to in paragraph (i) above shall have noeffect and the obligations of the Borrower or Guarantor and the Securitypursuant to any Finance Document created or intended to be created by or overthat Borrower or Guarantor shall continue in full force and effect.

 

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**SECTION ****10**

 

**THEFINANCE PARTIES**

 

29.                           **Role of the Agent, theSecurity Agent and the Arranger**

 

29.1                     **Appointment of the Agent and theSecurity Agent**

 

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

 

(b)                           Each other Finance Party appoints the Security Agentto act as security trustee under and in connection with the Finance Documents.

 

(c)                            Each other Finance Party authorises each of the Agentand the Security Agent to exercise the rights, powers, authorities anddiscretions specifically given to it under or in connection with the FinanceDocuments together with any other incidental rights, powers, authorities anddiscretions.

 

29.2                     **Duties of the Agent and the SecurityAgent**

 

(a)                            The Agent shall promptly forward to a Party theoriginal or a copy of any document which is delivered to the Agent for thatParty by any other Party.

 

(b)                           Except where a Finance Document specifically providesotherwise, the Agent is not obliged to review or check the adequacy, accuracyor completeness of any document it forwards to another Party.

 

(c)                            If the Agent receives notice from a Party referring tothis Agreement, describing a Default and stating that the circumstancedescribed is a Default, it shall promptly notify the Finance Parties.

 

(d)                           If the Agent is aware of the non-payment of anyprincipal, interest, commitment fee or other fee payable to a Finance Party(other than the Agent or the Arranger) under this Agreement it shall promptlynotify the other Finance Parties.

 

(e)                            The Agent shall promptly send to the Security Agentsuch certification as the Security Agent may require pursuant to paragraph 7 (*Basis of distribution*) of Schedule 7 (*Security Agency provisions*).

 

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

 

29.3                     **Role of the Arranger**

 

Exceptas specifically provided in the Finance Documents, the Arranger has noobligations of any kind to any other Party under or in connection with anyFinance Document.

 

29.4                     **Role of the Security Agent**

 

TheSecurity Agent shall not be an agent of (except as expressly provided in anyFinance Document) any Finance Party under or in connection with any FinanceDocument.

 

29.5                     **No fiduciary duties**

 

(a)                            Nothing in this Agreement constitutes the Agent, theSecurity Agent (except as expressly provided in any Finance Document) or theArranger as a trustee or fiduciary of any other person.

 

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(b)                           Neither the Agent, the Security Agent (except asexpressly provided in any Finance Document) nor the Arranger shall be bound toaccount to any Lender for any sum or the profit element of any sum received byit for its own account.

 

29.6                     **Business with the Group**

 

TheAgent, the Security Agent and the Arranger may accept deposits from, lend moneyto and generally engage in any kind of banking or other business with anymember of the Group.

 

29.7                     **Rights and discretions of the Agentand the Security Agent**

 

(a)                            The Agent and the Security Agent may rely on:

 

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

 

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

 

(b)                           The Agent and the Security Agent may assume (unless ithas received notice to the contrary in its capacity as agent for the Lendersor, as the case may be, as security trustee for theFinance Parties) that:

 

(i)                                      no Default has occurred (unless it has actualknowledge of a Default arising under Clause 26.1 (*Non-payment*));

 

(ii)                                   any right, power, authority or discretion vested inany Party or the Majority Lenders has not been exercised; and

 

(iii)                                any notice or request made by the Company (other thana Utilisation Request or Selection Notice) is made on behalf of and with theconsent and knowledge of all the Obligors.

 

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

 

(d)                           Each of the Agent and the Security Agent may act inrelation to the Finance Documents through its personnel and agents.

 

(e)                            The Agent may disclose to any other Party anyinformation it reasonably believes it has received as agent under thisAgreement.

 

(f)                              Notwithstanding any other provision of any FinanceDocument to the contrary, neither the Agent, the Security Agent nor the Arrangeris obliged to do or omit to do anything if it would or might in its reasonableopinion constitute a breach of any law or regulation or a breach of a fiduciaryduty or duty of confidentiality.

 

29.8                     **Majority Lenders’ instructions**

 

(a)                            Unless a contrary indication appears in a FinanceDocument, the Agent and the Security Agent shall (i) exercise any right,power, authority or discretion vested in it as Agent or Security Agent (as thecase may be) in accordance with any instructions given to it by the MajorityLenders (or, if so instructed by the Majority Lenders, refrain from exercisingany right, power, authority or discretion vested in it as Agent or SecurityAgent, as the case may be) and (ii) not be liable for 

 

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any act (or omission) if it acts (or refrainsfrom taking any action) in accordance with an instruction of the MajorityLenders.

 

(b)                           Unless a contrary indication appears in a FinanceDocument, any instructions given by the Majority Lenders will be binding on allthe Finance Parties.

 

(c)                            Each of the Agent and the Security Agent may refrainfrom acting in accordance with the instructions of the Majority Lenders (or, ifappropriate, the Lenders) until it has received such security as it may requirefor any cost, loss or liability (together with any associated VAT) which it mayincur in complying with the instructions.

 

(d)                           In the absence of instructions from the MajorityLenders (or, if appropriate, the Lenders), each of the Agent and the SecurityAgent may act (or refrain from taking action) as it considers to be in the bestinterest of the Lenders.

 

(e)                            Neither the Agent nor the Security Agent is authorisedto act on behalf of a Lender (without first obtaining that Lender’s consent) inany legal or arbitration proceedings relating to any Finance Document.

 

29.9                     **Responsibility for documentation**

 

Neitherthe Agent, the Security Agent nor the Arranger:

 

(a)                                   is responsible for the adequacy, accuracy and/orcompleteness of any information (whether oral or written) supplied by theAgent, the Security Agent, the Arranger, an Obligor or any other person givenin or in connection with any Finance Document or the Information Memorandum; or

 

(b)                                  is responsible for the legality, validity,effectiveness, adequacy or enforceability of any Finance Document or any otheragreement, arrangement or document entered into, made or executed inanticipation of or in connection with any Finance Document.

 

29.10               **Exclusion of liability**

 

(a)                            Without limiting paragraph (b) below (and withoutprejudice to the provisions of paragraph (e) of Clause 33.11 (*Disruption to Payment Systems etc*)),neither the Agent nor the Security Agent will be liable including withoutlimitation for negligence or any other category of liability whatsoever for anyaction taken by it under or in connection with any Finance Document, unlessdirectly caused by its gross negligence or wilful misconduct.

 

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

 

(c)                            Neither the Agent nor the Security Agent will beliable for any delay (or any related consequences) in crediting an account withan amount required under the Finance Documents to be paid by it if it has takenall necessary steps as soon as reasonably practicable to comply with theregulations or operating procedures of any recognised clearing or settlementsystem used by it for that purpose.

 

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(d)                           Nothing in this Agreement shall oblige the Agent orthe Arranger to carry out any “know your customer” or other checks in relationto any person on behalf of any Lender and each Lender confirms to the Agent andthe Arranger that it is solely responsible for any such checks it is requiredto carry out and that it may not rely on any statement in relation to suchchecks made by the Agent or the Arranger.

 

29.11               **Lenders’ indemnity to the Agent andthe Security Agent**

 

EachLender shall (in proportion to its share of the Total Commitments or, if theTotal Commitments are then zero, to its share of the Total Commitmentsimmediately prior to their reduction to zero) indemnify the Agent and theSecurity Agent, within three Business Days of demand, against any cost, loss orliability including without limitation for negligence or any other category ofliability whatsoever incurred by the Agent or the Security Agent (otherwisethan by reason of its gross negligence or wilful misconduct) (or in the case ofany cost, loss or liability pursuant to Clause 33.11 (*Disruption to Payment Systems etc.*)notwithstanding the Agent’s negligence, gross negligence or any other categoryof liability whatsoever but not including any claim based on the fraud of theAgent) in acting as Agent or, as the case may be, Security Agent under theFinance Documents (unless it has been reimbursed by an Obligor pursuant to aFinance Document).

 

29.12               **Resignation of the Agent or theSecurity Agent**

 

(a)                            The Agent or the Security Agent may resign and appointone of its Affiliates acting through an office in the United Kingdom, Germanyor Finland as successor by giving notice to the other Finance Parties and theCompany.

 

(b)                           Alternatively the Agent or the Security Agent mayresign by giving notice to the other Finance Parties and the Company, in whichcase the Majority Lenders (after consultation with the Company) may appoint asuccessor Agent or, as the case may be, Security Agent in each case actingthrough an office in the United Kingdom, Germany or Finland.

 

(c)                            If the Majority Lenders have not appointed a successorAgent or, as the case may be, Security Agent in accordance with paragraph (b) abovewithin 30 days after notice of resignation was given, the Agent or, as the casemay be, Security Agent (after consultation with the Company) may appoint asuccessor Agent or Security Agent.

 

(d)                           The retiring Agent or Security Agent shall, at its owncost, make available to its successor such documents and records and providesuch assistance as its successor may reasonably request for the purposes ofperforming its functions as Agent or Security Agent under the FinanceDocuments.

 

(e)                            The resignation notice of the Agent or Security Agentshall only take effect upon the appointment of a successor.

 

(f)                              Upon the appointment of a successor, the retiringAgent or Security Agent shall be discharged from any further obligation inrespect of the Finance Documents but shall remain entitled to the benefit ofthis Clause 29. Its successor and each of the other Parties shall have the samerights and obligations amongst themselves as they would have had if suchsuccessor had been an original Party.

 

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(g)                           After consultation with the Company, the MajorityLenders may, by notice to the Agent or, as the case may be, the Security Agent,require it to resign in accordance with paragraph (b) above.  In this event, the Agent or, as the case maybe, the Security Agent shall resign in accordance with paragraph (b) above.

 

29.13               **Confidentiality**

 

(a)                            The Agent (in acting as agent for the Finance Parties)and the Security Agent (in acting as security trustee for the Finance Parties)shall be regarded as acting through its respective agency or security trusteedivision which in each case shall be treated as a separate entity from anyother of its divisions or departments.

 

(b)                           If information is received by another division ordepartment of the Agent or, as the case may be, the Security Agent, it may betreated as confidential to that division or department and the Agent or, as thecase may be, the Security Agent shall not be deemed to have notice of it.

 

29.14               **Relationship with the Lenders**

 

(a)                            The Agent may treat each Lender as a Lender, entitledto payments under this Agreement and acting through its Facility Office unlessit has received not less than five Business Days prior notice from that Lenderto the contrary in accordance with the terms of this Agreement.

 

(b)                           Each Lender shall supply the Agent with anyinformation required by the Agent in order to calculate the Mandatory Cost inaccordance with Schedule 4 (*Mandatory Cost**formulae*).

 

29.15               **Credit appraisal by the Lenders**

 

Withoutaffecting the responsibility of any Obligor for information supplied by it oron its behalf in connection with any Finance Document, each Lender confirms tothe Agent, the Security Agent and the Arranger that it has been, and willcontinue to be, solely responsible for making its own independent appraisal andinvestigation of all risks arising under or in connection with any FinanceDocument including but not limited to:

 

(a)                                   the financial condition, status and nature of eachmember of the Group;

 

(b)                                  the legality, validity, effectiveness, adequacy orenforceability of any Finance Document and any other agreement, Security,arrangement or document entered into, made or executed in anticipation of,under or in connection with any Finance Document;

 

(c)                                   whether that Lender has recourse, and the nature andextent of that recourse, against any Party or any of its respective assetsunder or in connection with any Finance Document, the transactions contemplatedby the Finance Documents or any other agreement, Security, arrangement ordocument entered into, made or executed in anticipation of, under or inconnection with any Finance Document; and

 

(d)                                  the adequacy, accuracy and/or completeness of theInformation Memorandum and any other information provided by the Agent, theSecurity Agent, any Party or by any other person under or in connection withany Finance Document, the transactions contemplated by the Finance Documents orany other agreement, Security, arrangement or document entered into, made orexecuted in anticipation of, under or in connection with any Finance Document.

 

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29.16               **Reference Banks**

 

If aReference Bank (or, if a Reference Bank is not a Lender, the Lender of which itis an Affiliate) ceases to be a Lender, the Agent shall (in consultation withthe Company) appoint another Lender or an Affiliate of a Lender to replace thatReference Bank.

 

29.17               **Management time of the Agent and theSecurity Agent**

 

Ifan Event of Default has occurred and is continuing, any amount payable to theAgent or the Security Agent under Clause 18.3 (*Indemnityto the Agent**and the Security**Agent*), Clause 20 (*Costs and expenses*) and Clause 29.11 (*Lenders’ indemnity to the Agent**and the Security**Agent*) shall include the cost of utilisingits management time or other resources and will be calculated on the basis ofsuch reasonable daily or hourly rates as it may notify to the Company and theLenders, and is in addition to any fee paid or payable to it under Clause 15 (*Fees*).

 

29.18               **Security Agency provisions**

 

Theprovisions of Schedule 7 (*Security Agencyprovisions*) shall bind each Party.

 

29.19               **Deduction from amounts payable by theAgent or the Security Agent**

 

Ifany Party owes an amount to the Agent or the Security Agent under the FinanceDocuments the Agent or the Security Agent (as the case may be) may, aftergiving notice to that Party, deduct an amount not exceeding that amount fromany payment to that Party which the Agent or the Security Agent (as the casemay be) would otherwise be obliged to make under the Finance Documents and applythe amount deducted in or towards satisfaction of the amount owed.  For the purposes of the Finance Documentsthat Party shall be regarded as having received any amount so deducted.

 

30.                           **Parallel Debt**

 

(a)                            Each Obligor hereby irrevocably and unconditionallyundertakes to pay to the Security Agent amounts equal to any amounts owing fromtime to time by that Obligor to any Finance Party under any Finance Document asand when those amounts are due.

 

(b)                           Each Obligor and the Security Agent acknowledge thatthe obligations of each Obligor under paragraph (a) are several andare separate and independent from, and shall not in any way affect, thecorresponding obligations of that Obligor to any Finance Party under anyFinance Document (its “**Corresponding Debt**”)provided that:

 

(i)                                      the amounts for which each Obligor is liable underparagraph (a) (its “**Parallel Debt**”)shall be decreased to the extent that its Corresponding Debt has beenirrevocably paid or (in the case of guarantee obligations) discharged; and

 

(ii)                                   the Corresponding Debt of each Obligor shall bedecreased to the extent that its Parallel Debt has been irrevocably paid or (inthe case of guarantee obligations) discharged; and

 

(iii)                                the Parallel Debt of an Obligor shall not exceed itsCorresponding Debt.

 

(c)                            For the purpose of this Clause 30, the Security Agentacts in its own name and not as a trustee, and its claims in respect of theParallel Debt shall not be held on trust. The Security granted under theSecured Documents to the Security Agent to secure the Parallel Debt is grantedto the Security Agent in its capacity as creditor of the Parallel Debt andshall not be held on trust.

 

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(d)                           All monies received by the Security Agent pursuant tothis Clause, and all amounts received by the Security Agent from or by theenforcement of any Security granted to secure the Parallel Debt, shall beapplied in accordance with paragraph 15 (*Orderof application*) of Schedule 7 (*SecurityAgency provisions*) of this Agreement.

 

(e)                            Without limiting or affecting the Security Agent’srights against the Obligors (whether under this Clause or under any otherprovision of the Finance Document), each Obligor acknowledges that:

 

(i)                                      nothing in this Clause shall impose any obligation onthe Security Agent to advance any sum to any Obligor or otherwise under anyFinance Document, except in its capacity as Senior Lender; and

 

(ii)                                   for the purpose of any vote taken under any FinanceDocument, the Security Agent shall not be regarded as having any participationor commitment other than those which it has in its capacity as a Lender.

 

31.                           **Conduct of business by theFinance Parties**

 

Noprovision of this Agreement will:

 

(a)                                   interfere with the right of any Finance Party toarrange its affairs (tax or otherwise) in whatever manner it thinks fit;

 

(b)                                  oblige any Finance Party to investigate or claim anycredit, relief, remission or repayment available to it or the extent, order andmanner of any claim; or

 

(c)                                   oblige any Finance Party to disclose any informationrelating to its affairs (tax or otherwise) or any computations in respect ofTax.

 

32.                           **Sharing among the FinanceParties**

 

32.1                     **Payments to Finance Parties**

 

If aFinance Party (a “**Recovering Finance Party**”)receives or recovers any amount from an Obligor other than in accordance withClause 33 (*Payment mechanics*) andapplies that amount to a payment due under the Finance Documents then:

 

(a)                                   the Recovering Finance Party shall, within threeBusiness Days, notify details of the receipt or recovery to the Agent;

 

(b)                                  the Agent shall determine whether the receipt orrecovery is in excess of the amount the Recovering Finance Party would havebeen paid had the receipt or recovery been received or made by the Agent anddistributed in accordance with Clause 33 (*Paymentmechanics*), without taking account of any Tax which would be imposedon the Agent in relation to the receipt, recovery or distribution; and

 

(c)                                   the Recovering Finance Party shall, within threeBusiness Days of demand by the Agent, pay to the Agent an amount (the “**Sharing Payment**”) equal to such receipt orrecovery less any amount which the Agent determines may be retained by theRecovering Finance Party as its share of any payment to be made, in accordancewith Clause 33.5 (*Partial payments*).

 

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32.2                     **Redistribution of payments**

 

TheAgent shall treat the Sharing Payment as if it had been paid by the relevantObligor and distribute it between the Finance Parties (other than the RecoveringFinance Party) in accordance with Clause 33.5 (*Partialpayments*).

 

32.3                     **Recovering Finance Party’s rights**

 

(a)                            On a distribution by the Agent under Clause 32.2 (*Redistribution of payments*), theRecovering Finance Party will be subrogated to the rights of the FinanceParties which have shared in the redistribution.

 

(b)                           If and to the extent that the Recovering Finance Partyis not able to rely on its rights under paragraph (a) above, the relevantObligor shall be liable to the Recovering Finance Party for a debt equal to theSharing Payment which is immediately due and payable.

 

32.4                     **Reversal of redistribution**

 

Ifany part of the Sharing Payment received or recovered by a Recovering FinanceParty becomes repayable and is repaid by that Recovering Finance Party, then:

 

(a)                                   each Finance Party which has received a share of therelevant Sharing Payment pursuant to Clause 32.2 (*Redistribution of payments*) shall, upon request of theAgent, pay to the Agent for account of that Recovering Finance Party an amountequal to the appropriate part of its share of the Sharing Payment (togetherwith an amount as is necessary to reimburse that Recovering Finance Party forits proportion of any interest on the Sharing Payment which that RecoveringFinance Party is required to pay); and

 

(b)                                  that Recovering Finance Party’s rights of subrogationin respect of any reimbursement shall be cancelled and the relevant Obligorwill be liable to the reimbursing Finance Party for the amount so reimbursed.

 

32.5                     **Exceptions**

 

(a)                            This Clause 32 shall not apply to the extent that theRecovering Finance Party would not, after making any payment pursuant to thisClause, have a valid and enforceable claim against the relevant Obligor.

 

(b)                           A Recovering Finance Party is not obliged to sharewith any other Finance Party any amount which the Recovering Finance Party hasreceived or recovered as a result of taking legal or arbitration proceedings,if:

 

(i)                                      it notified that other Finance Party of the legal orarbitration proceedings; and

 

(ii)                                   that other Finance Party had an opportunity toparticipate in those legal or arbitration proceedings but did not do so as soonas reasonably practicable having received notice and did not take separatelegal or arbitration proceedings.

 

32.6                     **Loss sharing**

 

(a)                            In this Clause:

 

“**Loss Sharing Date**” means the date (if any)on which the Agent exercises any of its rights under paragraph (a)(ii) and/or(a)(iv) of Clause 26.16 (*Acceleration*)or the date (if any) on which the Facilities are cancelled under Clause 11.3 (*Change of control*).

 

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(b)                           If, at any time after the Loss Sharing Date, for anyreason:

 

(i)                                      any outstandings under Facility B or any AncillaryFacility will not be repaid and/or discharged; and

 

(ii)                                   any resulting loss is not shared between the FacilityB Lenders and the Ancillary Lenders pro rata to the amount which theirrespective exposures, whether drawn or undrawn, bore to their total exposure,whether drawn or undrawn, as at the Loss Sharing Date,

 

theFacility B Lenders and the Ancillary Lenders shall make such payments betweenthemselves as the Agent shall require to ensure that after taking into accountsuch payments, any such loss is shared between the Facility B Lenders and theAncillary Lenders pro rata to the amount which their respective exposures,whether drawn or undrawn, bore to their total exposure, whether drawn orundrawn, as at the Loss Sharing Date.

 

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**SECTION ****11**

 

**ADMINISTRATION**

 

33.                           **Payment mechanics**

 

33.1                     **Payments to the Agent**

 

(a)                            On each date on which an Obligor or a Lender isrequired to make a payment under a Finance Document, that Obligor (subject toClause 33.10 (*Payments to the Security Agent*))or Lender shall make the same available to the Agent (unless a contraryindication appears in a Finance Document) for value on the due date at the timeand in such funds specified by the Agent as being customary at the time forsettlement of transactions in the relevant currency in the place of payment.

 

(b)                           Payment shall be made to such account in the principalfinancial centre of the country of that currency (or, in relation to euro, inthe principal financial centre in a Participating Member State or London) withsuch bank as the Agent specifies.

 

33.2                     **Distributions by the Agent**

 

Eachpayment received by the Agent under the Finance Documents for another Partyshall, subject to Clause 33.3 (*Distributionsto**an**Obligor*) and Clause 33.4 (*Clawback*) and Clause 33.10 (*Payments to the Security Agent*), be madeavailable by the Agent as soon as practicable after receipt to the Partyentitled to receive payment in accordance with this Agreement (in the case of aLender, for the account of its Facility Office), to such account as that Partymay notify to the Agent by not less than five Business Days’ notice with a bankin the principal financial centre of the country of that currency (or, inrelation to euro, in the principal financial centre of a Participating MemberState or London).

 

33.3                     **Distributions to an Obligor**

 

TheAgent and the Security Agent may (with the consent of the Obligor or inaccordance with Clause 34 (*Set-off*))apply any amount received by it for that Obligor in or towards payment (on thedate and in the currency and funds of receipt) of any amount due from thatObligor under the Finance Documents or in or towards purchase of any amount ofany currency to be so applied.

 

33.4                     **Clawback**

 

(a)                            Where a sum is to be paid to the Agent or the SecurityAgent under the Finance Documents for another Party, the Agent or, as the casemay be, the Security Agent is not obliged to pay that sum to that other Party(or to enter into or perform any related exchange contract) until it has beenable to establish to its satisfaction that it has actually received that sum.

 

(b)                           If the Agent or the Security Agent pays an amount toanother Party and it proves to be the case that it had not actually receivedthat amount, then the Party to whom that amount (or the proceeds of any relatedexchange contract) was paid shall on demand refund the same to the Agent or, asthe case may be, the Security Agent together with interest on that amount fromthe date of payment to the date of receipt by the Agent or, as the case may be,the Security Agent, calculated by it to reflect its cost of funds.

 

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33.5                     **Partial payments**

 

(a)                            If the Agent receives a payment that is insufficientto discharge all the amounts then due and payable by an Obligor under theFinance Documents, the Agent shall apply that payment towards the obligationsof that Obligor under the Finance Documents in the following order:

 

(i)                                      first, in or towards payment pro rata of any unpaidfees, costs and expenses of the Agent, the Security Agent, the Issuing Bank orthe Arranger under the Finance Documents;

 

(ii)                                   secondly, in or towards payment pro rata of anyaccrued interest, fee or commission due but unpaid under this Agreement or anyAncillary Facility Document;

 

(iii)                                thirdly, in or towards payment pro rata of anyprincipal due but unpaid under this Agreement or any Ancillary FacilityDocument and any amount due but unpaid under Clauses 7.4 (*Claims under a Letter of Credit or Bank Guarantee*)and 7.5 (*Indemnities*); and

 

(iv)                               fourthly, in or towards payment pro rata of any othersum due but unpaid under the Finance Documents or any Ancillary FinanceDocument,

 

providedthat the Agent shall not make any such payments to any Ancillary Lender priorto the Agent delivering a notice to the Company pursuant to paragraphs (a) (ii) or(a) (iv) of Clause 26.16 (*Acceleration*)or any date on which the Facilities are cancelled pursuant to Clause 11.3 (*Change of control*).

 

(b)                           The Agent shall, if so directed by the MajorityLenders, vary the order set out in paragraphs (a)(ii) to (iv) above.

 

(c)                            Paragraphs (a) and (b) above will overrideany appropriation made by an Obligor.

 

33.6                     **No set-off by Obligors**

 

Allpayments to be made by an Obligor under the Finance Documents shall becalculated and be made without (and free and clear of any deduction for)set-off or counterclaim.

 

33.7                     **Business Days**

 

(a)                            Any payment which is due to be made on a day that isnot a Business Day shall be made on the next Business Day in the same calendarmonth (if there is one) or the preceding Business Day (if there is not).

 

(b)                           During any extension of the due date for payment ofany principal or Unpaid Sum under this Agreement interest is payable on theprincipal or Unpaid Sum at the rate payable on the original due date.

 

33.8                     **Currency of account**

 

(a)                            Subject to paragraphs (b) to (e) below, theBase Currency is the currency of account and payment for any sum due from anObligor under any Finance Document.

 

(b)                           A repayment of a Utilisation or Unpaid Sum or a part ofa Utilisation or Unpaid Sum shall be made in the currency in which thatUtilisation or Unpaid Sum is denominated on its due date.

 

(c)                            Each payment of interest shall be made in the currencyin which the sum in respect of which the interest is payable was denominatedwhen that interest accrued.

 

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(d)                           Each payment in respect of costs, expenses or Taxesshall be made in the currency in which the costs, expenses or Taxes areincurred.

 

(e)                            Any amount expressed to be payable in a currency otherthan the Base Currency shall be paid in that other currency.

 

33.9                     **Change of currency**

 

(a)                            Unless otherwise prohibited by law, if more than onecurrency or currency unit are at the same time recognised by the central bankof any country as the lawful currency of that country, then:

 

(i)                                      any reference in the Finance Documents to, and anyobligations arising under the Finance Documents in, the currency of thatcountry shall be translated into, or paid in, the currency or currency unit ofthat country designated by the Agent (after consultation with the Company); and

 

(ii)                                   any translation from one currency or currency unit toanother shall be at the official rate of exchange recognised by the centralbank for the conversion of that currency or currency unit into the other,rounded up or down by the Agent (acting reasonably).

 

(b)                           If a change in any currency of a country occurs, thisAgreement will, to the extent the Agent (acting reasonably and afterconsultation with the Company) specifies to be necessary, be amended to complywith any generally accepted conventions and market practice in the RelevantInterbank Market and otherwise to reflect the change in currency.

 

33.10               **Payments to the Security Agent**

 

Notwithstandingany other provision of any Finance Document, at any time after any Securitycreated by or pursuant to any Security Document becomes enforceable, theSecurity Agent may require:

 

(a)                                   any Obligor to pay all sums due under any FinanceDocument; or

 

(b)                                  the Agent to pay all sums received or recovered froman Obligor under any Finance Document,

 

ineach case as the Security Agent may direct for application in accordance withthe terms of the Security Documents.

 

33.11               **Disruption to Payment Systems etc.**

 

Ifeither the Agent determines (in its discretion) that a Disruption Event hasoccurred or the Agent is notified by the Company that a Disruption Event hasoccurred:

 

(a)                                   the Agent may, and shall if requested to do so by theCompany, consult with the Company with a view to agreeing with the Company suchchanges to the operation or administration of the Facilities as the Agent maydeem necessary in the circumstances;

 

(b)                                  the Agent shall not be obliged to consult with theCompany in relation to any changes mentioned in paragraph (a) if, in itsopinion, it is not practicable to do so in the circumstances and, in any event,shall have no obligation to agree to such changes;

 

(c)                                   the Agent may consult with the Finance Parties inrelation to any changes mentioned in paragraph (a) but shall not beobliged to do so if, in its opinion, it is not practicable to do so in thecircumstances;

 

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(d)                                  any such changes agreed upon by the Agent and theCompany shall (whether or not it is finally determined that a Disruption Eventhas occurred) be binding upon the Parties as an amendment to (or, as the casemay be, waiver of) the terms of the Finance Documents notwithstanding theprovisions of Clause 39 (*Amendments andWaivers*);

 

(e)                                   the Agent shall not be liable for any damages, costsor losses whatsoever (including, without limitation for negligence, grossnegligence or any other category of liability whatsoever but not including anyclaim based on the fraud of the Agent) arising as a result of its taking, orfailing to take, any actions pursuant to or in connection with this Clause33.11; and

 

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

 

34.                           **Set-off**

 

AFinance Party may set off any matured obligation due from an Obligor under theFinance 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 eitherobligation.  If the obligations are indifferent currencies, the Finance Party may convert either obligation at amarket rate of exchange in its usual course of business for the purpose of theset-off.

 

35.                           **Notices**

 

35.1                     **Communications in writing**

 

Anycommunication to be made under or in connection with the Finance Documentsshall be made in writing and, unless otherwise stated, may be made by fax orletter.

 

35.2                     **Addresses**

 

Theaddress and fax number (and the department or officer, if any, for whoseattention the communication is to be made) of each Party for any communicationor document to be made or delivered under or in connection with the FinanceDocuments is:

 

(a)                                   in the case of the Company, that identified with itsname in the signature pages below;

 

(b)                                  in the case of each Lender, each Ancillary Lender orany other Original Obligor, that notified in writing to the Agent on or priorto the date on which it becomes a Party; and

 

(c)                                   in the case of the Agent, the Issuing Bank and the SecurityAgent, that identified with its name in the signature pages below,

 

orany substitute address, fax number or department or officer as the Party maynotify to the Agent (or the Agent may notify to the other Parties, if a changeis made by the Agent) by not less than five Business Days’ notice.

 

35.3                     **Delivery**

 

(a)                            Any communication or document made or delivered by oneperson to another under or in connection with the Finance Documents will onlybe effective:

 

(i)                                      if by way of fax, when received in legible form; or

 

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(ii)                                   if by way of letter, when it has been left at therelevant address or five Business Days after being deposited in the postpostage prepaid in an envelope addressed to it at that address,

 

and,if a particular department or officer is specified as part of its addressdetails provided under Clause 35.2 (*Addresses*),if addressed to that department or officer.

 

(b)                           Any communication or document to be made or deliveredto the Agent or the Security Agent will be effective only when actuallyreceived by the Agent and then only if it is expressly marked for the attentionof the department or officer identified with its signature below (or anysubstitute department or officer as it shall specify for this purpose).

 

(c)                            All notices from or to an Obligor shall be sentthrough the Agent.

 

(d)                           Any communication or document made or delivered to theCompany in accordance with this Clause will be deemed to have been made ordelivered to each of the Obligors.

 

35.4                     **Notification of address and faxnumber**

 

Promptlyupon receipt of notification of an address and fax number or change of addressor fax number pursuant to Clause 35.2 (*Addresses*)or changing its own address or fax number, the Agent shall notify the otherParties.

 

35.5                     **Electronic communication**

 

(a)                            Any communication to be made between the Agent and aLender or the Company under or in connection with the Finance Documents may bemade by electronic mail or other electronic means, if the Agent and therelevant Lender or the Company:

 

(i)                                      agree that, unless and until notified to the contrary,this is to be an accepted form of communication;

 

(ii)                                   notify each other in writing of their electronic mailaddress and/or any other information required to enable the sending and receiptof information by that means; and

 

(iii)                                notify each other of any change to their address orany other such information supplied by them.

 

(b)                           Any electronic communication made between the Agentand a Lender or the Company will be effective only when actually received inreadable form and in the case of any electronic communication made by a Lenderor the Company to the Agent only if it is addressed in such a manner as theAgent shall specify for this purpose.

 

35.6                     **English language**

 

(a)                            Any notice given under or in connection with anyFinance Document must be in English.

 

(b)                           All other documents provided under or in connectionwith any Finance Document must be:

 

(i)                                      in English; or

 

(ii)                                   if not in English, and if so required by the Agent,accompanied by a certified English translation and, in this case, the Englishtranslation will prevail unless the document is a constitutional, statutory orother official document.

 

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36.                           **Calculations andcertificates**

 

36.1                     **Accounts**

 

Inany litigation or arbitration proceedings arising out of or in connection witha Finance Document, the entries made in the accounts maintained by a FinanceParty are prima facie evidence of the matters to which they relate.

 

36.2                     **Certificates and Determinations**

 

Anycertification or determination by a Finance Party of a rate or amount under anyFinance Document is, in the absence of manifest error, conclusive evidence ofthe matters to which it relates.

 

36.3                     **Day count convention**

 

Anyinterest, commission or fee accruing under a Finance Document will accrue fromday to day and is calculated on the basis of the actual number of days elapsedand a year of 360 days or, in any case where the practice in the Relevant InterbankMarket differs, in accordance with that market practice.

 

37.                           **Partial invalidity**

 

If,at any time, any provision of the Finance Documents is or becomes illegal,invalid or unenforceable in any respect under any law of any jurisdiction,neither the legality, validity or enforceability of the remaining provisionsnor the legality, validity or enforceability of such provision under the law ofany other jurisdiction will in any way be affected or impaired.

 

38.                           **Remedies and waivers**

 

Nofailure to exercise, nor any delay in exercising, on the part of any FinanceParty, any right or remedy under the Finance Documents shall operate as awaiver, nor shall any single or partial exercise of any right or remedy preventany further or other exercise or the exercise of any other right orremedy.  The rights and remedies providedin this Agreement are cumulative and not exclusive of any rights or remediesprovided by law.

 

39.                           **Amendments and waivers**

 

39.1                     **Required consents**

 

(a)                            Subject to Clause 39.2 (*Exceptions*) any term of the Finance Documents may be amendedor waived only with the consent of the Majority Lenders and the Obligors andany such amendment or waiver will be binding on all Parties.

 

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

 

39.2                     **Exceptions**

 

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

 

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

 

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

 

119

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(iii)                                a reduction in the Margin or a reduction in the amountof any payment of principal, interest, fees or commission payable;

 

(iv)                               an increase in or an extension of any Commitment;

 

(v)                                  a change to the Borrowers or Guarantors other than inaccordance with Clause 28 (*Changes to the**Obligors*);

 

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

 

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

 

(viii)                         the release of any Security created pursuant to anySecurity Document or of any asset charged thereunder (except as provided in anySecurity Document or made pursuant to a Permitted Disposal),

 

shallnot be made without the prior consent of all the Lenders.

 

(b)                           An amendment or waiver which relates to the rights orobligations of the Agent, the Security Agent, the Issuing Bank, any AncillaryLender or the Arranger may not be effected without the consent of the Agent,the Security Agent, the Issuing Bank, any Ancillary Lender or, as the case maybe the Arranger.

 

40.                           **Counterparts**

 

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

 

120

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**SECTION ****12**

 

**GOVERNINGLAW AND ENFORCEMENT**

 

41.                           **Governing law**

 

ThisAgreement is governed by English law.

 

42.                           **Enforcement**

 

42.1                     **Jurisdiction**

 

(a)                            The courts of England have exclusive jurisdiction tosettle any dispute arising out of or in connection with this Agreement(including a dispute regarding the existence, validity or termination of thisAgreement) (a “**Dispute**”).

 

(b)                           The Parties agree that the courts of England are themost appropriate and convenient courts to settle Disputes and accordingly noParty will argue to the contrary.

 

(c)                            This Clause 42.1 is for the benefit of the FinanceParties only.  As a result, no FinanceParty shall be prevented from taking proceedings relating to a Dispute in anyother courts with jurisdiction.  To theextent allowed by law, the Finance Parties may take concurrent proceedings inany number of jurisdictions.

 

42.2                     **Service of process**

 

Withoutprejudice to any other mode of service allowed under any relevant law, eachObligor (other than an Obligor incorporated in England and Wales):

 

(a)                                   irrevocably appoints Clifford Chance SecretariesLimited at 10, Upper Bank Street, London E14 5JJ as its agent for service ofprocess in relation to any proceedings before the English courts in connectionwith any Finance Document; and

 

(b)                                  agrees that failure by a process agent to notify therelevant Obligor of the process will not invalidate the proceedings concerned.

 

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

 

121

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**Schedule1**

 

**THEORIGINAL PARTIES**

 

**Part I****THE ORIGINAL OBLIGORS**

 

 
| **Name of Original Borrower** | ** ** | **Registration number (or equivalent, if any)** |
|----------------------------------------------|------------|--------------------------------------------------------------------------|
|                                         |       |                                                                     |
| SACHTLEBEN  CHEMIE GMBH                      |       | HR  B 1 96 69                                                            |
|                                         |       |                                                                     |
| FINNISH  HOLDCO                              |       | 2196924-0                                                                |
|                                         |       |                                                                     |
| KEMIRA  PIGMENTS OY                          |       | 0948159-2                                                                |
|                                         |       |                                                                     |
| **Name of  Original Guarantor**              | ** ** | **Registration number (or equivalent, if any)**                          |
| ** **                                   | ** ** | ** **                                                               |
| SACHTLEBEN  CHEMIE GMBH                      |       | HR  B 1 96 69                                                            |
|                                         |       |                                                                     |
| FINNISH  HOLDCO                              |       | 2196924-0                                                                |
|                                         |       |                                                                     |
| KEMIRA  PIGMENTS OY                          |       | 0948159-2                                                                |

 

122

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**Part II**

** **

**THEORIGINAL LENDERS**

 
| **Name of Original Lender** | ** ** | **Facility A Commitment********(€)** | ** ** | **Facility B Commitment********(€)** | ** ** |
|--------------------------------------------|------------|-----------------------------------------------------|------------|-----------------------------------------------------|------------|
|                                       |       |                                                |       |                                                |       |
| Skandinaviska Enskilda Banken AB (publ)    |       | 150,000,000                                         |       | 15,000,000                                          |       |
|                                       |       |                                                |       |                                                |       |
| Nordea Bank Finland Plc                    |       | 150,000,000                                         |       | 15,000,000                                          |       |

 

123

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**Schedule2**

 

**CONDITIONSPRECEDENT**

** **

**Part I****CONDITIONS PRECEDENT TO INITIALUTILISATION**

 

1.                                 **Original Obligors**

 

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

 

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

 

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

 

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

 

(i)                                      approving the terms of, and the transactionscontemplated by, the Finance Documents to which it is a party and resolvingthat it execute the Finance Documents to which it is a party; and

 

(ii)                                   instructing the managing director(s) of eachOriginal Obligor to execute the Finance Documents to which it is a party.

 

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

 

(i)                                      approving the terms of, and the transactionscontemplated by, the Finance Documents to which it is a party and resolvingthat it execute the Finance Documents to which it is a Party;

 

(ii)                                   authorising a specified person or persons to executethe Finance Documents to which it is a party on its behalf; and

 

(iii)                                authorising a specified person or persons, on itsbehalf, to sign and/or despatch all documents and notices (including, ifrelevant, any Utilisation Request and Selection Notice) to be signed and/ordespatched by it under or in connection with the Finance Documents to which itis a party.

 

(f)                              A copy of a resolution signed by all the holders ofthe issued shares in each Original Guarantor incorporated in a jurisdictionother than Germany, approving the terms of, and the transactions contemplatedby, the Finance Documents to which that Original Guarantor is a party.

 

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

 

124

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(h)                           A certificate of the Company (signed by a director)confirming that borrowing or guaranteeing, as appropriate, the TotalCommitments would not cause any borrowing, guaranteeing or similar limitbinding on any Original Obligor to be exceeded.

 

(i)                               A certificate of an authorised signatory of therelevant Original Obligor certifying that each copy document relating to itspecified in this Part I of Schedule 2 is correct, complete and in full forceand effect as at a date no earlier than the date of this Agreement.

 

2.                                 **Security**

 

Confirmationfrom the Security Agent that it has received each of the following documents inform and substance satisfactory to it:

 

(a)                            A copy of each Security Document, duly executed by theparties to it;

 

(b)                           All documents and/or evidence of all other steps,required to perfect those Security Documents (to the extent so requiredpursuant to the terms of the relevant Security Document) as advised to theSecurity Agent by its legal advisers in each relevant jurisdiction.

 

3.                                 **Subordination Agreement**

 

Acopy of the Subordination Agreement, duly executed by the parties to it.

 

4.                                 **Legal opinions**

 

(a)                            A legal opinion of Linklaters LLP, legal advisers tothe Arranger and the Agent in England and Germany substantially in the formdistributed to the Original Lenders prior to delivery.

 

(b)                           A legal opinion of Clifford Chance LLP, legal advisersto the Obligors in Germany, on due incorporation and capacity of the Obligors,incorporated in Germany, substantially in the form distributed to the OriginalLenders prior to delivery.

 

(c)                            A legal opinion of Hannes Snellman Attorneys at LawLtd, legal advisers to the Arranger and the Agent in Finland, substantially inthe form distributed to the Original Lenders prior to delivery.

 

5.                                 **Other documents and evidence**

 

(a)                            Evidence that any process agent referred to in Clause42.2 (*Service of process*) hasaccepted its appointment.

 

(b)                           A copy of any other Authorisation or other document,opinion or assurance which the Agent considers to be necessary (if it hasnotified the Company accordingly) in connection with the entry into andperformance of the transactions contemplated by any Finance Document or for thevalidity and enforceability of any Finance Document.

 

(c)                            The Original Financial Statements of each OriginalObligor.

 

(d)                           Evidence that the fees, costs and expenses then duefrom the Company pursuant to Clause 15 (*Fees*)and Clause 20 (*Costs and expenses*)have been paid or will be paid by the first Utilisation Date.

 

(e)                            Evidence that at the date of initial Utilisation,Kemira Oy owns 39% and Rockwood Specialties Group GmbH owns 61% of the issuedshare capital of the Company.

 

125

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(f)                              A copy of the Structuring Report.

 

(g)                           A copy of:

 

(i)                                      the KPMG Financial Due Diligence Report; and

 

(ii)                                   the PwC Financial Due Diligence Report,

 

togetherwith all related reliance letters and agreements.

 

(h)                           A copy of any Authorisation required by the Owners toenter into and perform their obligations under the JV Documents.

 

(i)                               Evidence that the Kemira Guarantee has been releasedin full or will be released in full prior to initial Utilisation of anyFacility.

 

(j)                               Evidence that:

 

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

 

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

 

ineach case prior to initial Utilisation of any Facility.

 

(k)                            A copy of each agreement documenting each ShareholderLoan or, where no copy is available, a written confirmation from the relevantcreditor of each Shareholder Loan as to the outstanding principal amount ofthat Shareholder Loan on the date of the first Utilisation Request.

 

(l)                               A copy of the Hedging Letter, duly executed by theparties to it.

 

(m)                         A copy of the Base Case cash flow model.

 

(n)                           A copy of pro forma condensed consolidated financialstatements of the Company showing five year projections.

 

(o)                           The certificate referred to in paragraph (a)(i) ofClause 4.2 (*Further conditions precedent*).

 

(p)                           A list of Material Subsidiaries in existence at thedate of initial Utilisation.

 

(q)                           An executed copy of each JV Document.

 

(r)                              Evidence that all Existing Debt which is to be repaidon the date of first Utilisation of Facility A will be repaid and cancelled infull on or before the date of such Utilisation.

 

(s)                            A structure chart of the Group.

 

(t)                              A certificate of an authorised signatory of theCompany certifying that steps 1 -17 (except for the repayment of ExistingDebt), as set out in the section of the Structuring Report entitled “JV —Structure for Europe”, have been completed in accordance with the StructuringReport.

 

(u)                           A copy of the KPMG Supplementary Report.

 

126

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**Part II**

 

**CONDITIONSPRECEDENT REQUIRED TO BEDELIVERED BY AN ADDITIONAL OBLIGOR**

 

1.                                 An Accession Letter, duly executed by the AdditionalObligor and the Company.

 

2.                                 A certified copy of the constitutional documents ofthe Additional Obligor meaning, in respect of an Additional Obligorincorporated in Finland, a copy of an extract from the Finnish Trade Registerand articles of association of recent date not dated earlier than 14 days priorto the date of its accession.

 

3.                                 If the Additional Obligor is incorporated in Germany, a certifiedexcerpt from the commercial register of the Additional Obligor of recent date notdated earlier than 14 days prior to the date of its accession.

 

4.                                 If customary and so required by the Agent, a copy of aresolution of the board of directors of the Additional Obligor:

 

(a)                                   approving the terms of, and the transactionscontemplated by, the Accession Letter and the Finance Documents and resolvingthat it execute the Accession Letter;

 

(b)                                  authorising a specified person or persons to executethe Accession Letter on its behalf; and

 

(c)                                   authorising a specified person or persons, on itsbehalf, to sign and/or despatch all other documents and notices (including, inrelation to an Additional Borrower, any Utilisation Request or SelectionNotice) to be signed and/or despatched by it under or in connection with theFinance Documents.

 

5.                                 A specimen of the signature of each person authorisedby the resolution referred to in paragraph 4 above.

 

6.                                 If the Additional Guarantor is incorporated in Englandand Wales, or if customary and so required by the Agent, a copy of a resolutionsigned by all the holders of the issued shares of the Additional Guarantor,approving the terms of, and the transactions contemplated by, the FinanceDocuments to which the Additional Guarantor is a party.

 

7.                                 A certificate of the Additional Obligor (signed by adirector) confirming that borrowing or guaranteeing, as appropriate, the TotalCommitments would not cause any borrowing, guaranteeing or similar limitbinding on it to be exceeded.

 

8.                                 A certificate of an authorised signatory of theAdditional Obligor certifying that each copy document listed in this Part IIof Schedule 2 is correct, complete and in full force and effect as at a date noearlier than the date of the Accession Letter.

 

9.                                 A copy of any other Authorisation or other document,opinion or assurance which the Agent considers to be necessary or desirable inconnection with the entry into and performance of the transactions contemplatedby the Accession Letter or for the validity and enforceability of any FinanceDocument.

 

127

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10.                           If available, the latest unaudited financialstatements of the Additional Obligor.

 

11.                           A legal opinion of Linklaters LLP, legal advisers tothe Arranger and the Agent in England.

 

12.                           If the Additional Obligor is incorporated in ajurisdiction other than England and Wales, a legal opinion of the legaladvisers to the Arranger and the Agent in the jurisdiction in which theAdditional Obligor is incorporated.

 

13.                           If the proposed Additional Obligor is incorporated ina jurisdiction other than England and Wales, evidence that the process agentspecified in Clause 42.2 (*Service of process*),if not an Obligor, has accepted its appointment in relation to the proposedAdditional Obligor.

 

14.                           Supplemental Security Documents granting security overall material assets of the Additional Obligor, duly executed by the AdditionalObligor together with such other documents relating to the security grantedpursuant to such supplemental Security Documents as the Security Agent mayrequire.

 

128

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**Schedule3**

 

**REQUESTS**

 

**Part I****UTILISATION REQUEST**

 

From:                  [Name of relevant Borrower]

 

To:                              Merchant Banking, Skandinaviska Enskilda Banken AB(publ)

 

Dated:

 

DearSirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH**

**- €330,000,000 FacilityAgreementdated 17 June 2008 (the “Agreement”)**

 

1.                                 We refer to the Agreement. This is a UtilisationRequest. Terms defined in the Agreement have the same meaning in thisUtilisation Request unless given a different meaning in this UtilisationRequest.

 

2.                                 We wish to borrow a Loan on the following terms:

 
| Proposed Utilisation Date: | [                   ]  or, if that is not a Business Day, the next Business Day) |
|----------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                       |                                                                                                                                                                            |
| Facility to be utilised:   | [Facility  A]/[Facility B]*                                                                                                                                                     |
|                       |                                                                                                                                                                            |
| Currency of Loan:          | [                   ]                                                            |
|                       |                                                                                                                                                                            |
| Amount:                    | [                   ]  or, if less, the Available Facility                       |
|                       |                                                                                                                                                                            |
| Interest Period:           | [                   ]                                                            |

 

3.                                 We confirm that each condition specified in Clause 4.2(*Further conditions precedent*) issatisfied on the date of this Utilisation Request (to the extent required to besatisfied pursuant to that Clause).

 

4.                                 The proceeds of this Loan should be credited to[account].

 

5.                                 This Utilisation Request is irrevocable.

 
| Yours  faithfully            |
|------------------------------|
|                         |
|                         |   |
|                         |
| Name  and title:             |
|                         |
| authorised  signatory for    |
|                         |
| [name  of relevant Borrower] |

 

 

----

*            Delete as appropriate

 

129

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**Part II**

 

**SELECTIONNOTICEAPPLICABLE TO A FACILITY A LOAN**

 

From:                  [Name of relevant Borrower]

 

To:                              Merchant Banking, Skandinaviska Enskilda Banken AB(publ)

 

Dated:

 

DearSirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 FacilityAgreementdated 17 June 2008****(the “Agreement”)**

 

1.                                 We refer to the Agreement. This is a Selection Notice.Terms defined in the Agreement have the same meaning in this Selection Noticeunless given a different meaning in this Selection Notice.

 

2.                                 We refer to the following Facility A Loan[s] in [*identify currency*] with an Interest Periodending on[                   ].*

 

3.                                 We request that the above Facility A Loan[s] bedivided into[                   ]Facility A Loans with the following Base Currency Amounts and Interest Periods:**

 

or

 

Werequest that the next Interest Period for the above Facility A Loan[s] is [                   ].***

 

4.                                 This Selection Notice is irrevocable.

 
| Yours  faithfully            |
|------------------------------|
|                         |
|                         |   |
|                         |
| Name  and title:             |
|                         |
| authorised  signatory for    |
|                         |
| the  Company on behalf of    |
| [Name  of relevant Borrower] |

 

----

| *      | Insert  details of all Facility A Loans in the same currency which have an Interest  Period ending on the same date. |
|--------|----------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                 |
| **     | Use  this option if division of Loans is requested.                                                                  |
|   |                                                                                                                 |
| ***    | Use  this option if sub-division is not required.                                                                    |

 

130

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**Part III**

 

**UTILISATIONREQUESTLETTERS OF CREDIT AND BANK GUARANTEES**

 

From:               [Name of relevant Borrower]

 

To:                             Merchant Banking, Skandinaviska Enskilda Banken AB(publ)

 

Dated:

 

DearSirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 FacilityAgreementdated 17 June 2008 (the “Agreement”)**

 

1.                                We wish to arrange for a [Letter of Credit/BankGuarantee] to be issued by the Issuing Bank on the following terms:

 
| Proposed Utilisation Date: | [                   ]  (or, if that is not a Business Day, the next Business Day) |
|----------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                       |                                                                                                                                                                             |
| Facility to be utilised:   | Facility  B                                                                                                                                                                      |
|                       |                                                                                                                                                                             |
| Amount:                    | [                   ]  or, if less, the Available Facility                        |
|                       |                                                                                                                                                                             |
| Beneficiary:               | [                   ]                                                             |
|                       |                                                                                                                                                                             |
| Term or Expiry Date:       | [                   ]                                                             |

 

2.                                We confirm that each condition specified in Clause 6.6(*Issue of Letters of Credit or BankGuarantees*) is satisfied on the date of this Utilisation Request.

 

3.                                We attach a copy of the proposed [Letter ofCredit/Bank Guarantee]

 

4.                                This Utilisation Request is irrevocable.

 

DeliveryInstructions:

 

[*specifydelivery instructions*]

 
| Yours  faithfully            |
|------------------------------|
|                         |
|                         |   |
|                         |
| Name  and title:             |
|                         |
| authorised  signatory for    |
|                         |
| the  Company on behalf of    |
| [Name  of relevant Borrower] |

 

131

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**PART IV****ANCILLARY FACILITY REQUEST**

 

 
| From:  | [Company]                                                  |
|--------|------------------------------------------------------------|
|   |                                                       |
| To:    | Merchant  Banking, Skandinaviska Enskilda Banken AB (publ) |

 

Dated:

 

DearSirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 FacilityAgreementdated 17 June 2008****(the “Agreement”)**

 

1.                                We refer to the Agreement. This is an AncillaryFacility Request. Terms defined in the Agreement have the same meaning in thisAncillary Facility Request unless given a different meaning in this AncillaryFacility Request.

 

2.                                We wish to establish an Ancillary Facility on thefollowing terms:

 
| Proposed Borrower:                     | [                   ] |
|----------------------------------------|----------------------------------------------------------------------------------------------------------------------|
|                                   |                                                                                                                 |
| Proposed Ancillary Lender:             | [                   ] |
|                                   |                                                                                                                 |
| Type or types of facility:             | [                   ] |
|                                   |                                                                                                                 |
| Commencement Date:                     | [                   ] |
|                                   |                                                                                                                 |
| Expiry date:                           | [                   ] |
|                                   |                                                                                                                 |
| Ancillary Commitment amount:           | [                   ] |
|                                   |                                                                                                                 |
| Currency/ies available:                | [                   ] |
|                                   |                                                                                                                 |
| [Other details required by the Agent:] | [                   ] |

 

3.                                We confirm that each condition specified in paragraphs(a) and (b) of Clause 9.4 (*Grantof Ancillary Facility*) is satisfied on the date of this AncillaryFacility Request.

 

4.                                This Ancillary Facility Request is irrevocable.

 

Yoursfaithfully

 

 
|             |   |
|------------------|--------|
|             |
| Name  and title: |

 

authorisedsignatory for[*Company*]

 

132

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**Schedule4**

 

**MANDATORYCOST FORMULAE**

 

1.                                The Mandatory Cost is an addition to the interest rateto compensate Lenders for the cost of compliance with (a) the requirementsof the Bank of England and/or the Financial Services Authority (or, in eithercase, any other authority which replaces all or any of its functions) or (b) therequirements of the European Central Bank.

 

2.                                On the first day of each Interest Period (or as soonas possible thereafter) the Agent shall calculate, as a percentage rate, a rate(the “**Additional Cost Rate**”) foreach Lender, in accordance with the paragraphs set out below.  The Mandatory Cost will be calculated by theAgent as a weighted average of the Lenders’ Additional Cost Rates (weighted inproportion to the percentage participation of each Lender in the relevant Loan)and will be expressed as a percentage rate per annum.

 

3.                                The Additional Cost Rate for any Lender lending from aFacility Office in a Participating Member State will be the percentage notifiedby that Lender to the Agent. This percentage will be certified by that Lenderin its notice to the Agent to be its reasonable determination of the cost(expressed as a percentage of that Lender’s participation in all Loans made fromthat Facility Office) of complying with the minimum reserve requirements of theEuropean Central Bank in respect of loans made from that Facility Office.

 

4.                                The Additional Cost Rate for any Lender lending from aFacility Office in the United Kingdom will be calculated by the Agent asfollows:

 

(a)                                  in relation to a sterling Loan:

 
|  | per  cent. per annum |
|--|----------------------|

 

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

 
|  | per  cent. per annum. |
|--|-----------------------|

 

Where:

 

A                                       is the percentage of Eligible Liabilities (assumingthese to be in excess of any stated minimum) which that Lender is from time totime required to maintain as an interest free cash ratio deposit with the Bankof England to comply with cash ratio requirements.

 

B                                       is the percentage rate of interest (excluding theMargin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additionalrate of interest specified in paragraph (a) of Clause 12.3 (*Default interest*)) payable for therelevant Interest Period on the Loan.

 

C                                       is the percentage (if any) of Eligible Liabilitieswhich that Lender is required from time to time to maintain as interest bearingSpecial Deposits with the Bank of England.

 

D                                       is the percentage rate per annum payable by the Bankof England to the Agent on interest bearing Special Deposits.

 

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E                                        is designed to compensate Lenders for amounts payableunder the Fees Rules and is calculated by the Agent as being the averageof the most recent rates of charge supplied by the Reference Banks to the Agentpursuant to paragraph 7 below and expressed in pounds per £1,000,000.

 

5.                                For the purposes of this Schedule:

 

(a)                           “**EligibleLiabilities**” and “**Special Deposits**”have the meanings given to them from time to time under or pursuant to the Bankof 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 Manualor such other law or regulation as may be in force from time to time in respectof the payment of fees for the acceptance of deposits;

 

(c)                            “**Fee Tariffs**”means the fee tariffs specified in the Fees Rules under the activity groupA.1 Deposit acceptors (ignoring any minimum fee or zero rated fee requiredpursuant to the Fees Rules but taking into account any applicable discountrate); and

 

(d)                           “**Tariff Base**”has the meaning given to it in, and will be calculated in accordance with, theFees Rules.

 

6.                                In application of the above formulae, A, B, C and Dwill be included in the formulae as percentages (i.e. 5 per cent. will beincluded in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken aszero.  The resulting figures shall berounded to four decimal places.

 

7.                                If requested by the Agent, each Reference Bank shall,as soon as practicable after publication by the Financial Services Authority,supply to the Agent, the rate of charge payable by that Reference Bank to theFinancial Services Authority pursuant to the Fees Rules in respect of therelevant financial year of the Financial Services Authority (calculated forthis purpose by that Reference Bank as being the average of the Fee Tariffsapplicable to that Reference Bank for that financial year) and expressed inpounds per £1,000,000 of the Tariff Base of that Reference Bank.

 

8.                                Each Lender shall supply any information required bythe Agent for the purpose of calculating its Additional Cost Rate.  In particular, but without limitation, eachLender shall supply the following information on or prior to the date on whichit becomes a Lender:

 

(a)                                  the jurisdiction of its Facility Office; and

 

(b)                                  any other information that the Agent may reasonablyrequire for such purpose.

 

EachLender shall promptly notify the Agent of any change to the informationprovided by it pursuant to this paragraph.

 

9.                                The percentages of each Lender for the purpose of Aand C above and the rates of charge of each Reference Bank for the purpose of Eabove shall be determined by the Agent based upon the information supplied toit pursuant to paragraphs 7 and 8 above and on the assumption that, unless aLender notifies the Agent to the contrary, each Lender’s obligations inrelation to cash 

 

134

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ratio deposits and Special Deposits are thesame as those of a typical bank from its jurisdiction of incorporation with aFacility Office in the same jurisdiction as its Facility Office.

 

10.                         The Agent shall have no liability to any person ifsuch determination results in an Additional Cost Rate which over or undercompensates any Lender and shall be entitled to assume that the informationprovided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8above is true and correct in all respects.

 

11.                         The Agent shall distribute the additional amountsreceived as a result of the Mandatory Cost to the Lenders on the basis of theAdditional Cost Rate for each Lender based on the information provided by eachLender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.

 

12.                         Any determination by the Agent pursuant to thisSchedule in relation to a formula, the Mandatory Cost, an Additional Cost Rateor any amount payable to a Lender shall, in the absence of manifest error, beconclusive and binding on all Parties.

 

13.                         The Agent may from time to time, after consultationwith the Company and the Lenders, determine and notify to all Parties anyamendments which are required to be made to this Schedule in order to complywith any change in law, regulation or any requirements from time to time imposedby the Bank of England, the Financial Services Authority or the EuropeanCentral Bank (or, in any case, any other authority which replaces all or any ofits functions) and any such determination shall, in the absence of manifesterror, be conclusive and binding on all Parties.

 

135

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**Schedule5**

 

**FORM OFTRANSFER CERTIFICATE**

 

To:                             Merchant Banking, Skandinaviska Enskilda Banken AB(publ) as Agent

 

From:               [                   ](the “**Existing Lender**”) and[                   ](the “**New Lender**”)

 

Dated:

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 FacilityAgreementdated 17 June 2008 (the “Agreement”)**

 

1.                                We refer to the Agreement. This is a TransferCertificate. Terms defined in the Agreement have the same meaning in thisTransfer Certificate unless given a different meaning in this TransferCertificate.

 

2.                                We refer to Clause 27.5 (*Procedure for transfer*):

 

(a)                                  The Existing Lender and the New Lender agree to theExisting Lender transferring to the New Lender by novation all or part of theExisting Lender’s Commitment, rights and obligations referred to in theSchedule in accordance with Clause 27.5 (*Procedurefor transfer*).

 

(b)                                  The proposed Transfer Date is[                   ].

 

(c)                                   The Facility Office and address, fax number andattention details for notices of the New Lender for the purposes of Clause 35.2(*Addresses*) are set out in theSchedule.

 

3.                                The New Lender expressly acknowledges the limitationson the Existing Lender’s obligations set out in paragraph (c) of Clause27.4 (*Limitation of responsibility ofExisting Lenders*).

 

4.                                This Transfer Certificate may be executed in anynumber of counterparts and this has the same effect as if the signatures on thecounterparts were on a single copy of this Transfer Certificate.

 

5.                                This Transfer Certificate is governed by English law.

 

136

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**THE SCHEDULECommitment/rights and obligations to be transferred**

 
| [*insert  relevant details*]                                                                               |
|------------------------------------------------------------------------------------------------------------|
|                                                                                                       |
| [Facility Office address, fax number and  attention details for notices and account details for payments.] |
|                                                                                                       |   |   |
| [Existing  Lender]                                                                                         | [New  Lender ] |   |
|                                                                                                       |   |   |
| By:                                                                                                        | By: |   |

 

ThisTransfer Certificate is accepted by the Agent and the Transfer Date isconfirmed as[                   ].

 

MerchantBanking, Skandinaviska Enskilda Banken AB (publ)

 

By:

 

137

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**Schedule6**

 

**FORM OFACCESSION LETTER**

 

To:                             Merchant Banking, Skandinaviska Enskilda Banken AB(publ) as Agent

 

From:               [Subsidiary] and Deukalion EinhundertvierundzwanzigsteVermögensverwaltungs - GmbH Dated:

 

DearSirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 FacilityAgreementdated 17 June 2008 (the “Agreement”)**

 

1.                                We refer to the Agreement. This is an AccessionLetter. Terms defined in the Agreement have the same meaning in this AccessionLetter unless given a different meaning in this Accession Letter.

 

2.                                [Subsidiary] agrees to become an Additional[Borrower]/[Guarantor] and to be bound by the terms of the Agreement as anAdditional [Borrower]/[Guarantor] pursuant to [Clause 28.2 (*Additional Borrowers*)]/[Clause 28.4 (*Additional Guarantors*)] of theAgreement.  [Subsidiary] is a companyduly incorporated under the laws of [*name ofrelevant jurisdiction*].

 

3.                                [Subsidiary’s] administrative details are as follows:

 

Address:

 

FaxNo:

 

Attention:

 

4.                                This Accession Letter is governed by English law.

 

ThisGuarantor Accession Letter has been delivered as a deed on the date stated atthe beginning of this Guarantor Accession Letter.

 
|                                   |             |   |
|----------------------------------------|------------------|--------|
|                                   |             |
| Name  and title:                       | Name  and title: |
|                                   |             |
| Deukalion  Einhundertvierundzwanzigste |             |
| Vermögensverwaltungs  - GmbH      | [Subsidiary]     |

 

138

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**Schedule7**

 

**SECURITYAGENCY PROVISIONS**

 

1.                                **Definitions**

 

Inthis Schedule:

 

“**Security Property**” means all right, titleand interest in, to and under any Security Document, including:

 

(a)                                  the assets expressed to be subject to the Securitycreated pursuant to any Security Document;

 

(b)                                  the benefit of the undertakings in any SecurityDocument; and

 

(c)                                   all sums received or recovered by the Security Agentpursuant to any Security Document and any assets representing the same.

 

2.                                **Declaration of trust**

 

(a)                           The Security Agent and each other Finance Party agreethat the Security Agent shall hold the Security Property in trust for thebenefit of the Finance Parties on the terms of the Finance Documents.

 

(b)                           Subject to paragraph (c) below, paragraph (a) aboveshall not apply to any Security Document which is expressed to be or isconstrued to be governed by any law other than English law or any other lawfrom time to time designated by the Security Agent and an Obligor or anySecurity Property arising under any such Security Document.

 

(c)                            Paragraph (b) above shall not affect or limitparagraph (d) of Clause 30 (*ParallelDebt*) nor the applicability of the provisions of this Schedule withrespect to any Security Document which is expressed to be or is construed to begoverned by any law other than English law or any other law from time to timedesignated by the Security Agent and an Obligor or any Security Propertyarising under any such Security Document.

 

3.                                **Defects in Security**

 

TheSecurity Agent shall not be liable for any failure or omission to perfect, ordefect in perfecting, the Security created pursuant to any Security Document,including:

 

(a)                                  failure to obtain any Authorisation for the execution,validity, enforceability or admissibility in evidence of any Security Document;or

 

(b)                                  failure to effect or procure registration of orotherwise protect or perfect any of the Security created by the SecurityDocuments under any laws in any territory.

 

4.                                **No enquiry**

 

TheSecurity Agent may accept without enquiry, requisition, objection orinvestigation such title as any Obligor may have to any assets expressed to besubject to the Security created pursuant to any Security Document.

 

139

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5.                                **Retention of documents**

 

TheSecurity Agent may hold title deeds and other documents relating to any of theassets expressed to be subject to the Security created pursuant to any SecurityDocument in such manner as it sees fit (including allowing any Obligor toretain them).

 

6.                                **Indemnity out of Security Property**

 

TheSecurity Agent and every receiver, delegate, attorney, agent or other similarperson appointed under any Security Document may indemnify itself out of theSecurity Property against any cost, loss or liability incurred by it in thatcapacity (otherwise than by reason of its own gross negligence or wilfulmisconduct).

 

7.                                **Basis of distribution**

 

Toenable it to make any distribution, the Security Agent may fix a date as atwhich the amount of the Liabilities is to be calculated and may require, andrely on, a certificate from any Finance Party giving details of:

 

(a)                                  any sums due or owing to any Finance Party as at thatdate; and

 

(b)                                  such other matters as it thinks fit.

 

8.                                **Rights of Security Agent**

 

TheSecurity Agent shall have all the rights, privileges and immunities whichgratuitous trustees have or may have in England, even though it is entitled toremuneration.

 

9.                                **No duty to collect payments**

 

TheSecurity Agent shall not have any duty:

 

(a)                                  to ensure that any payment or other financial benefitin respect of any of the assets expressed to be subject to the Security createdpursuant to any Security Document is duly and punctually paid, received orcollected; or

 

(b)                                  to ensure the taking up of any (or any offer of any) stocks,shares, rights, moneys or other property accruing or offered at any time by wayof interest, dividend, redemption, bonus, rights, preference, option, warrantor otherwise in respect of any of the assets expressed to be subject to theSecurity created pursuant to any Security Document.

 

10.                         **Perpetuity period**

 

Theperpetuity period for the trusts created by the Finance Documents shall be 80years from the date of this Agreement.

 

140

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11.                         **Appropriation**

 

(a)                           Each Party irrevocably waives any right to appropriateany payment to, or other sum received, recovered or held by, the Security Agentin or towards payment of any particular part of the Liabilities and agrees thatthe Security Agent shall have the exclusive right to do so.

 

(b)                           Paragraph (a) above will override any applicationmade or purported to be made by any other person.

 

12.                         **Investments**

 

Allmoney received or held by the Security Agent under the Finance Documents may,in the name of, or under the control of, the Security Agent:

 

(a)                                  be invested in any investment it may select; or

 

(b)                                  be deposited at such bank or institution (includingitself, any other Finance Party or any Affiliate of any Finance Party) as itthinks fit.

 

13.                         **Suspense****account**

 

Subjectto paragraph 14 (*Timing of**Distributions*) below the Security Agentmay:

 

(a)                                  hold in an interest bearing suspense account any moneyreceived by it from any Obligor; and

 

(b)                                  invest an amount equal to the balance from time totime standing to the credit of that suspense account in any of the investmentsauthorised by paragraph 12 (*Investments*)above.

 

14.                         **Timing****of****Distributions**

 

Distributionsby the Security Agent shall be made as and when determined by it.

 

15.                         **Order of application**

 

Subjectto the rights of creditors mandatorily preferred by law applying to companiesgenerally, the proceeds of enforcement of the Security conferred by theSecurity Documents, all recoveries by the Security Agent under guarantees andall other amounts paid to the Security Agent pursuant to this Agreement shallbe applied in the following order:

 

(a)                                  **first,**in or towards payment of any unpaid fees, costs,expenses and liabilities (including any interest thereon as provided in theSecurity Documents) incurred by or on behalf of the Security Agent (or anyadviser, receiver, delegate, attorney or agent) and the remuneration of theSecurity Agent (or any adviser, receiver, delegate, attorney or agent) inconnection with carrying out its duties or exercising powers or discretionsunder the Security Documents or this Agreement;

 

(b)                                  **second,**in or towards payment to the Agent for applicationtowards any unpaid costs and expenses incurred by or on behalf of any FinanceParty in connection with such enforcement, recovery or other payment pari passubetween themselves;

 

141

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(c)                                   **third,**in or towards payment to the Agent for applicationtowards the balance of the Loans and any other Unpaid Sum;

 

(d)                                  **fourth,**in payment of the surplus (if any) to the relevantObligor or other person entitled to it.

 

16.                         **Delegation**

 

(a)                           The Security Agent may:

 

(i)                                      employ and pay an agent selected by it to transact orconduct any business and to do all acts required to be done by it (includingthe receipt and payment of money);

 

(ii)                                   delegate to any person on any terms (including powerto sub-delegate) all or any of its functions; and

 

(iii)                                with the prior consent of the Majority Lenders,appoint, on such terms as it may determine, or remove, any person to act eitheras separate or joint security agent with those rights and obligations vested inthe Security Agent by this Agreement or any Security Document.

 

(b)                           The Security Agent will not be:

 

(i)                                      responsible to anyone for any misconduct or omissionby any agent, person or security agent appointed by it pursuant to paragraph (a) above;or

 

(ii)                                   bound to supervise the proceedings or acts of any suchagent, person or security agent,

 

providedthat it exercises reasonable care in selecting that agent, person or securityagent.

 

17.                         **Unwinding**

 

Anyappropriation or distribution which later transpires to have been or is agreedby the Security Agent to have been invalid or which has to be refunded shall berefunded and shall be deemed never to have been made.

 

18.                         **Disapplication**

 

Section 1of the Trustee Act 2000 shall not apply to the duties and powers of theSecurity Agent in relation to the trusts constituted by any Finance Documentsave to the extent required by law. Where there are inconsistencies between the Trustee Act 1925 and theTrustee Act 2000 and the express provisions of any such Finance Document, theprovisions of such Finance Document shall, to the extent allowed by law,prevail and, in the case of any such inconsistency with the Trustee Act 2000,the provisions of such Finance Document shall constitute a restriction orexclusion for the purposes of that Act.

 

19.                         **Lenders**

 

TheSecurity Agent shall be entitled to assume that each Lender is a Lender unlessnotified by the Agent to the contrary.

 

142

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20.                         **Release of Security and guarantees**

 

If,pursuant to or for the purpose of any disposal permitted under the FinanceDocuments, the Security Agent requires any release of any guarantee or Securitygranted by any Obligor, each Party shall promptly enter into any release and/orother document and take any action which the Security Agent may reasonablyrequire.

 

21.                         **Authority of Security Agent**

 

(a)                           If, in connection with any disposal permitted underthe Finance Documents, an Obligor sells or otherwise disposes of (or proposesto sell or otherwise dispose of) any asset, the Security Agent may, and ishereby irrevocably authorised on behalf of each Party to:

 

(A)                            release the Security created pursuant to the SecurityDocuments over the relevant asset;

 

(B)                            if the relevant asset comprises all of the shares inthe capital of an Obligor, release that Obligor and any of its Subsidiariesform all its or their past, present and future liabilities and/or obligations(both actual and contingent) as an Obligor in accordance with Clauses 27.3 (*Assignment or transfer fee*) and/or 27.5 (*Procedure for transfer*).

 

(b)                           Each Party shall promptly enter into any releaseand/or other document and take any action which the Security Agent may reasonablyrequire to give effect to paragraph (a) above.

 

143

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**Schedule8**

 

**FORM OFCOMPLIANCE CERTIFICATE**

 

To:                                                                             Merchant Banking, Skandinaviska Enskilda Banken AB(publ) as Agent

 

From:                                                               Deukalion EinhundertvierundzwanzigsteVermögensverwaltungs - GmbH

 

Dated:

 

DearSirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH****- €330,000,000Facility Agreementdated 17 June 2008 (the “Agreement”)**

 

Werefer to the Agreement. This is a Compliance Certificate. Terms defined in theAgreement have the same meaning when used in this Compliance Certificate unlessgiven a different meaning in this Compliance Certificate.

 

1.                                [We confirm that no Default is continuing.]*

 

2.                                We confirm that:

 

[                   ]

 

3.                                We set out (in reasonable detail) below computationsas to the ratios appearing in paragraph 2 above.

 

[                   ]

 
| Signed:                                                                  |   |                                                                     | Signed: |   |
|--------------------------------------------------------------------------|--------|--------------------------------------------------------------------------|---------|--------|
|                                                                     |   |                                                                     |
| Name  and title:                                                         |   | Name  and title:                                                         |
|                                                                     |   |                                                                     |
| Director  of                                                             |   | Director  of                                                             |
| Deukalion  Einhundertvierundzwanzigste  Vermögensverwaltungs - GmbH |   | Deukalion  Einhundertvierundzwanzigste  Vermögensverwaltungs - GmbH |

 

**insert applicable certification language*

 

Wehave reviewed the Facility Agreement and audited consolidated financialstatements of [Sachtleben] for the year ended [                   ].

 

Onthe basis of that review and audit, nothing has come to our attention whichwould require any modification to the confirmations in paragraph 2 of the aboveCompliance Certificate [or which we know to be a continuing Default].

 

forand on behalf of Deukalion Einhundertvierundzwanzigste Vermögensverwaltungs -GmbH

 

----

*                                  If thisstatement cannot be made, the certificate should identify any Default that iscontinuing and the steps, if any, being taken to remedy it.

 

144

----

 

*name of auditors of DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs – GmbH*

 

145

----

 

**Schedule9****EXISTING SECURITY**

**Part I********EXISTING SECURITY**

 
| ** **          | ** ** | ** **                      | ** ** | **Real estate code** | ** ** | ** ** | ** ** | ** **                                                 | ** ** | ** ** | ** ** |
|---------------------|------------|---------------------------------|------------|--------------------------------|------------|------------|------------|------------------------------------------------------------|------------|------------|------------|
| **System nr.** | ** ** | **Real estate**            | ** ** | **From**                       | ** ** | **To**     | ** ** | **Beneficiary**                                            | ** ** | **CCY**    | ** ** | **Amount** | ** ** |
| 400265              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3160                           |       | 3160       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 168 100,00 |   |
| 400285              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3259                           |       | 3273       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 12 613 500,00 |   |
| 400258              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3144                           |       | 3145       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 336 200,00 |   |
| 400256              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3139                           |       | 3140       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 336 200,00 |   |
| 400255              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3129                           |       | 3133       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 840 500,00 |   |
| 400254              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3126                           |       | 3127       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 336 200,00 |   |
| 400251              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3162                           |       | 3162       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 33 600,00 |   |
|                |       |                            |       |                           |       |       | ** ** | ** **                                                 | ** ** | EUR        | ** ** | **14 664 300,00** | ** ** |

 
| ** **          | ** ** | ** **                      | ** ** | **Real estate code** | ** ** | ** ** | ** ** | ** **        | ** ** | ** ** | ** ** |
|---------------------|------------|---------------------------------|------------|--------------------------------|------------|------------|------------|-------------------|------------|------------|------------|
| **System nr.** | ** ** | **Real estate**            | ** ** | **From**                       | ** ** | **To**     | ** ** | **Beneficiary**   | ** ** | **CCY**    | ** ** | **Amount** | ** ** |
| 400263              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3203                           |       | 3203       |       | Pori Sicness Fund |       | EUR        |       | 336 300,00 |   |
|                |       |                            |       |                           |       |       | ** ** | ** **        | ** ** | EUR        | ** ** | **336 300,00** | ** ** |

 
| ** **          | ** ** | ** **                      | ** ** | **Real estate code** | ** ** | ** ** | ** ** | ** **      | ** ** | ** ** | ** ** |
|---------------------|------------|---------------------------------|------------|--------------------------------|------------|------------|------------|-----------------|------------|------------|------------|
| **System nr.** | ** ** | **Real estate**            | ** ** | **From**                       | ** ** | **To**     | ** ** | **Beneficiary** | ** ** | **CCY**    | ** ** | **Amount** | ** ** |
| 400377              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3835                           |       | 3841       |       | Tullihallitus   |       | EUR        |       | 117 600,00 |   |
| 400378              |       | Pori, Vuori-Yyteri R.no1:328  ( |       | 3819                           |       | 3829       |       | Tullihallitus   |       | EUR        |       | 184 800,00 |   |
| 400379              |       | Pori, Vuori-Yyteri R.no1:328  ( |       | 3833                           |       | 3834       |       | Tullihallitus   |       | EUR        |       | 33 600,00 |   |
| 400380              |       | Pori, Vuori-Yyteri R.no1:328  ( |       | 3842                           |       | 3842       |       | Tullihallitus   |       | EUR        |       | 16 800,00 |   |
| 400381              |       | Pori, Vuori-Yyteri R.no1:328  ( |       | 3843                           |       | 3855       |       | Tullihallitus   |       | EUR        |       | 218 400,00 |   |
| 400382              |       | Pori, Vuori-Yyteri R.no1:328  ( |       | 3858                           |       | 3862       |       | Tullihallitus   |       | EUR        |       | 84 000,00 |   |
| 400384              |       | Pori, Vuori-Yyteri R.no1:328  ( |       | 3864                           |       | 3878       |       | Tullihallitus   |       | EUR        |       | 252 000,00 |   |
|                |       |                            |       |                           |       |       | ** ** | ** **      | ** ** | EUR        | ** ** | **907 200,00** | ** ** |

 

146

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**Part II****KEMIRA PLEDGE**

 
| ** **          | ** ** | ** **                      | ** ** | **Real estate code** | ** ** | ** ** | ** ** | ** **             | ** ** | ** ** | ** ** |
|---------------------|------------|---------------------------------|------------|--------------------------------|------------|------------|------------|------------------------|------------|------------|------------|
| **System nr.** | ** ** | **Real estate**            | ** ** | **From**                       | ** ** | **To**     | ** ** | **Beneficiary**        | ** ** | **CCY**    | ** ** | **Amount** | ** ** |
| 400234              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3153                           |       | 3153       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400239              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3189                           |       | 3189       |       | Neliapila Pension Fund |       | EUR        |       | 185.500,00 |   |
| 400238              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3185                           |       | 3185       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400237              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3181                           |       | 3181       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400235              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3154                           |       | 3154       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400245              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3149                           |       | 3149       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400246              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3150                           |       | 3150       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400247              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3155                           |       | 3155       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400248              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3156                           |       | 3156       |       | Neliapila Pension Fund |       | EUR        |       | 16.800,00 |   |
| 400268              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3168                           |       | 3169       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400267              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3163                           |       | 3166       |       | Neliapila Pension Fund |       | EUR        |       | 672.400,00 |   |
| 400266              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3161                           |       | 3161       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400264              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3204                           |       | 3207       |       | Neliapila Pension Fund |       | EUR        |       | 1.345.200,00 |   |
| 400244              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3143                           |       | 3143       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400243              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3138                           |       | 3138       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400242              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3128                           |       | 3128       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400241              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3193                           |       | 3193       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400240              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3190                           |       | 3190       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400228              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3148                           |       | 3148       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400229              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3151                           |       | 3151       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400230              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3159                           |       | 3159       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400231              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3167                           |       | 3167       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400232              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3179                           |       | 3179       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400233              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3152                           |       | 3152       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400250              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3158                           |       | 3158       |       | Neliapila Pension Fund |       | EUR        |       | 16.800,00 |   |
| 400252              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3209                           |       | 3209       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400253              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3124                           |       | 3125       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400281              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3212                           |       | 3214       |       | Neliapila Pension Fund |       | EUR        |       | 2.522.700,00 |   |
| 400282              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3217                           |       | 3218       |       | Neliapila Pension Fund |       | EUR        |       | 1.681.800,00 |   |
| 400283              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3221                           |       | 3223       |       | Neliapila Pension Fund |       | EUR        |       | 2.522.700,00 |   |
| 400284              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3225                           |       | 3229       |       | Neliapila Pension Fund |       | EUR        |       | 4.204.500,00 |   |
| 400257              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3135                           |       | 3136       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400236              |       | Pori, Kaanaankorpi 67 Kr. 1  to |       | 3174                           |       | 3174       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400259              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3137                           |       | 3137       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400260              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3141                           |       | 3142       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400261              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3146                           |       | 3147       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400262              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3197                           |       | 3202       |       | Neliapila Pension Fund |       | EUR        |       | 5.045.400,00 |   |
| 400276              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3191                           |       | 3191       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400275              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3188                           |       | 3188       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400274              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3187                           |       | 3187       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400273              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3184                           |       | 3184       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400272              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3178                           |       | 3178       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400271              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3175                           |       | 3176       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400269              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3170                           |       | 3171       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400270              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3173                           |       | 3173       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400280              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3210                           |       | 3210       |       | Neliapila Pension Fund |       | EUR        |       | 840.900,00 |   |
| 400277              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3194                           |       | 3194       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400278              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3208                           |       | 3208       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400279              |       | Pori, Kaanaankorpi 67 Kr. 1  To |       | 3195                           |       | 3195       |       | Neliapila Pension Fund |       | EUR        |       | 840.900,00 |   |
|                |       |                            |       |                           |       |       | ** ** | ** **             | ** ** | EUR        | ** ** | **27.630.000,00** | ** ** |

 

147

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**Schedule10********TIMETABLES**

**Part I********LOANS**

 

“D-   “ refers to the number of BusinessDays before the relevant Utilisation Date/the first day of the relevantInterest Period.

 
| ** **                                                                                                                                                                                                                                                 | ** ** | **Loans in euro**                          | ** ** | **Loans in sterling**      | ** ** | **Loans in other  currencies** | ** ** |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------------------------------------------------|------------|--------------------------------------|------------|------------------------------------------|------------|
|                                                                                                                                                                                                                                                       |       |                                                 |       |                                 |       |                                     |       |
| Request  for approval as an Optional Currency, if required (Clause 4.3 (*Conditions relating to Optional Currencies*))                                                                                                                                     |       |                                                 |       | D  - 3   10:00 a.m.             |       | D  - 5  10:00 a.m.                  |       |
|                                                                                                                                                                                                                                                       |       |                                                 |       |                                 |       |                                     |       |
| Agent  notifies the Lenders of the request (Clause 4.3 (*Conditions relating to Optional Currencies*))                                                                                                                                                     |       |                                                 |       | D  - 3   3:00 p.m.              |       | D  - 5   3:00 p.m.                  |       |
|                                                                                                                                                                                                                                                       |       |                                                 |       |                                 |       |                                     |       |
| Responses  by Lenders to the request (Clause 4.3 (*Conditions  relating to Optional Currencies*))                                                                                                                                                          |       |                                                 |       | D  - 2   1:00 p.m.              |       | D  - 4   1:00 p.m.                  |       |
|                                                                                                                                                                                                                                                       |       |                                                 |       |                                 |       |                                     |       |
| Agent  notifies the Company if a currency is approved as an Optional Currency in  accordance with Clause 4.3 (*Conditions  relating to Optional Currencies*)                                                                                               |       |                                                 |       | D  - 2   5:00 p.m.              |       | D  - 4   5:00 p.m.                  |       |
|                                                                                                                                                                                                                                                       |       |                                                 |       |                                 |       |                                     |       |
| Delivery  of a duly completed Utilisation Request (Clause 5.1 (*Delivery of a Utilisation Request*)) or a  Selection Notice (Clause 13.1 (*Selection  of Interest Periods*))                                                                               |       | D  - 3   10:00 a.m.                             |       | D  - 1   10:00 a.m.             |       | D  - 3   10:00 a.m.                 |       |
|                                                                                                                                                                                                                                                       |       |                                                 |       |                                 |       |                                     |       |
| Agent  determines (in relation to a Utilisation) the Base Currency Amount of the  Loan, if required under Clause 5.4 (*Lenders’  participation*) and notifies the Lenders of the Loan in accordance  with Clause 5.4 (*Lenders’**participation*) |       | D  - 3   11:00 a.m.                             |       | D  - 1   11:00 a.m.             |       | D  - 3   11:00 a.m.                 |       |
|                                                                                                                                                                                                                                                       |       |                                                 |       |                                 |       |                                     |       |
| LIBOR  or EURIBOR is fixed                                                                                                                                                                                                                                 |       | Quotation  Day as of 11:00 a.m. (Brussels time) |       | Quotation  Day as of 11:00 a.m. |       | Quotation  Day as of 11:00 a.m.     |       |
|                                                                                                                                                                                                                                                       |       |                                                 |       |                                 |       |                                     |       |
| Agent  receives a notification from a Lender under Clause 8.2 (*Unavailability*                                                                                                                                                                            |       | Quotation  Day                                       |       | Quotation  Day                       |       | Quotation  Day                           |       |

 

148

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| *of a currency*)                                                                    |   | 3:00 p.m.                |   | 3:00 p.m.                |   | 3:00 p.m.                |   |
|-------------------------------------------------------------------------------------|--------|-------------------------------|--------|-------------------------------|--------|-------------------------------|--------|
| * *                                                                            |   |                          |   |                          |   |                          |   |
| Agent  gives notice in accordance with Clause 8.2 (*Unavailability  of a currency*) |   | Quotation  Day 5:00 p.m. |   | Quotation  Day 5:00 p.m. |   | Quotation  Day 5:00 p.m. |   |

 

149

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**Part II****LETTERS OF CREDIT OR BANK GUARANTEES**

 
| ** **                                                                                                                                                                                                                                                                                                                                                                         | ** ** | **Euro**                | ** ** | **Sterling**            | ** ** | **Other Currencies**    | ** ** |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|-------------------------|------------|-------------------------|------------|-------------------------|------------|
|                                                                                                                                                                                                                                                                                                                                                                               |       |                    |       |                    |       |                    |       |
| Request  for approval as an Optional Currency, if required (Clause 4.3 (*Conditions relating to Optional Currencies*))                                                                                                                                                                                                                                                             |       |                    |       | D  - 3  10:00 a.m. |       | D  - 5  10:00 a.m. |       |
|                                                                                                                                                                                                                                                                                                                                                                               |       |                    |       |                    |       |                    |       |
| Agent  notifies the Lenders of the request (Clause 4.3 (*Conditions relating to Optional Currencies*))                                                                                                                                                                                                                                                                             |       |                    |       | D  - 3  3:00 p.m.  |       | D  - 5  3:00 p.m.  |       |
|                                                                                                                                                                                                                                                                                                                                                                               |       |                    |       |                    |       |                    |       |
| Responses  by Lenders to the request (Clause 4.3 (*Conditions  relating to Optional Currencies*))                                                                                                                                                                                                                                                                                  |       |                    |       | D  - 2  1:00 p.m.  |       | D  - 4  1:00 p.m.  |       |
|                                                                                                                                                                                                                                                                                                                                                                               |       |                    |       |                    |       |                    |       |
| Agent  notifies the Company if a currency is approved as an Optional Currency in  accordance with Clause 4.3 (*Conditions  relating to Optional Currencies*)                                                                                                                                                                                                                       |       |                    |       | D  - 2  5:00 p.m.  |       | D  - 4  5:00 p.m.  |       |
|                                                                                                                                                                                                                                                                                                                                                                               |       |                    |       |                    |       |                    |       |
| Delivery  of a duly completed Utilisation Request (Clause 6.3 (*Delivery of a Utilisation Request for Letters of  Credit or Bank Guarantees*)                                                                                                                                                                                                                                      |       | D  - 3  10:00 a.m. |       | D  - 1  10:00 a.m. |       | D  - 3  10:00 a.m. |       |
|                                                                                                                                                                                                                                                                                                                                                                               |       |                    |       |                    |       |                    |       |
| Agent  determines (in relation to a Utilisation) the Base Currency Amount of the  Letter of Credit or Bank Guarantees, if required under Clause 6.6 (*Issue of Letters of Credit or Bank Guarantees*)  and notifies the Issuing Bank and the Lenders of the Letter of Credit or Bank  Guarantee in accordance with Clause 6.6 (*Issue  of Letters of Credit**or Bank  Guarantees*) |       | D  - 3  11:00 a.m. |       | D  - 1  11:00 a.m. |       | D  - 3  11:00 a.m. |       |
|                                                                                                                                                                                                                                                                                                                                                                               |       |                    |       |                    |       |                    |       |
| Delivery  of a duly completed Renewal Request (Clause 6.7 (*Renewal of a Letter of Credit or Bank Guarantee*).                                                                                                                                                                                                                                                                     |       | D  - 3  10:00 a.m. |       | D  - 1  10:00 a.m. |       | D  - 3  10:00 a.m. |       |

 

150

----

 

**Schedule11****FORM OF LETTER OF CREDIT**

 

To:                             [Beneficiary]

 

(the“**Beneficiary**”)

 

[Date]

 

**Irrevocable Standby Letter ofCredit no.**

 

Atthe request of[                   ]Merchant Banking, Skandinaviska Enskilda Banken AB (publ), (the “**Issuing Bank**”) issues this irrevocablestandby letter of credit (“**Letter of Credit**”)in your favour on the following terms and conditions:

 

1.                                **Definitions**

 

Inthis Letter of Credit:

 

“**Business Day**” means a day (other than aSaturday or a Sunday) on which banks are open for general business inFrankfurt, Helsinki, London and Stockholm(1).

 

“**Demand**” means a demand for a payment underthis Letter of Credit in the form of the schedule to this Letter of Credit.

 

“**Expiry Date**” means[                   ].

 

“**Total L/C Amount**” means [                   ].

 

2.                                **Issuing Bank’s agreement**

 

(a)                           The Beneficiary may request a drawing or drawingsunder this Letter of Credit by giving to the Issuing Bank a duly completedDemand.  A Demand must be received by theIssuing Bank by [                   ] p.m.([London] time) on the Expiry Date.

 

(b)                           Subject to the terms of this Letter of Credit, theIssuing Bank unconditionally and irrevocably undertakes to the Beneficiarythat, within [ten] Business Days of receipt by it of a Demand, it must pay tothe Beneficiary the amount demanded in that Demand.

 

(c)                            The Issuing Bank will not be obliged to make a paymentunder this Letter of Credit if as a result the aggregate of all payments madeby it under this Letter of Credit would exceed the Total L/C Amount.

 

----

(1)     This may need to be amended depending onthe currency of payment under the Letter of Credit.

 

151

----

 

3.                                **Expiry**

 

(a)                           The Issuing Bank will be released from its obligationsunder this Letter of Credit on the date (if any) notified by the Beneficiary tothe Issuing Bank as the date upon which the obligations of the Issuing Bankunder this Letter of Credit are released.

 

(b)                           Unless previously released under paragraph (a) above,on[                   ] p.m.([London] time) on the Expiry Date the obligations of the Issuing Bank underthis Letter of Credit will cease with no further liability on the part of theIssuing Bank except for any Demand validly presented under the Letter of Creditthat remains unpaid.

 

(c)                            When the Issuing Bank is no longer under any furtherobligations under this Letter of Credit, the Beneficiary must return theoriginal of this Letter of Credit to the Issuing Bank.

 

4.                                **Payments**

 

Allpayments under this Letter of Credit shall be made in the Base Currency or anOptional Currency and for value on the due date to the account of theBeneficiary specified in the Demand.

 

5.                                **Delivery of Demand**

 

EachDemand shall be in writing, and, unless otherwise stated, may be made by letteror fax and must be received in legible form by the Issuing Bank at its addressand by the particular department or officer (if any) as follows:

 

[Addressof Issuing Bank]

 

Attention:[                   ]

 

6.                                **Assignment**

 

TheBeneficiary’s rights under this Letter of Credit may not be assigned ortransferred.

 

7.                                **ISP 98**

 

Exceptto the extent it is inconsistent with the express terms of this Letter ofCredit, this Letter of Credit is subject to the International Standby Practices(ISP 98), International Chamber of Commerce Publication No. 590.

 

8.                                **Governing Law**

 

ThisLetter of Credit is governed by English law.

 

9.                                **Jurisdiction**

 

Thecourts of England have exclusive jurisdiction to settle any dispute arising outof or in connection with this Letter of Credit.

 

152

----

 

Yoursfaithfully,

 

MerchantBanking, Skandinaviska Enskilda Banken AB (publ)

 

 

By:

 

153

----

 

**SCHEDULEFORM OF DEMAND**

 

To:                             Merchant Banking, Skandinaviska Enskilda Banken AB(publ)

 

[Date]

 

DearSirs

 

**Standby Letter of Credit no.**[**                   **]**issued in favour of**[**BENEFICIARY**]**(the “Letter of Credit”)**

 

Werefer to the Letter of Credit.  Termsdefined in the Letter of Credit have the same meaning when used in this Demand.

 

1.                                We certify that the sum of[                   ]is due [and has remained unpaid for at least[                   ]Business Days] [under [set out underlying contract or agreement]].  We therefore demand payment of the sum of[                   ].

 

2.                                Payment should be made to the following account:

 

Name:

 

AccountNumber:

 

Bank:

 

3.                                The date of this Demand is not later than the ExpiryDate.

 

Yoursfaithfully

 
| (Authorised  Signatory) | (Authorised  Signatory) |
|-------------------------|-------------------------|
|                    |                    |
|                    |                    |
|                    | For                     |
|                    |                    |
|                    | [BENEFICIARY]           |

 

154

----

 

**Schedule12****FORM OF BANK GUARANTEE**

 
| To:    | [Beneficiary]                      |
|--------|------------------------------------|
|   |                               |
|   | (the  “**Beneficiary**”) |

 

[Date]

 

**Irrevocable Bank Guarantee No. [                   ]**

 

Atthe request of[                   ],Merchant Banking, Skandinaviska Enskilda Banken AB (publ) (the “**Issuing Bank**”) issues this irrevocable bankguarantee (“**Bank Guarantee**”) inyour favour on the following terms and conditions:

 

1.                                **Definitions**

 

Inthis Bank Guarantee:

 

“**Business Day**” means a day (not being a Saturdayor Sunday) on which banks are open for general business in Frankfurt, Helsinki,London and Stockholm.

 

“**Demand**” means a demand for a payment underthis Bank Guarantee in the form of the schedule to this Bank Guarantee.

 

“**Expiry Date**” means[                   ].

 

“**Total Bank Guarantee Account**” means[                   ].

 

2.                                **Issuing Bank’s agreement**

 

(a)                           The Beneficiary may make a demand under this BankGuarantee by giving to the Issuing Bank a duly completed Demand. A Demand mustbe received by the Issuing Bank by[                   ] p.m.([London] time) on the Expiry Date.

 

(b)                           Subject to the terms of this Bank Guarantee, theIssuing Bank unconditionally and irrevocably undertakes to the Beneficiarythat, within [ten] Business Days of receipt by it of a Demand, it must pay tothe Beneficiary the amount demanded in that Demand.

 

(c)                            The Issuing Bank will not be obliged to make a paymentunder this Bank Guarantee if as a result the aggregate of all payments made byit under this Bank Guarantee would exceed the Total Bank Guarantee Amount.

 

3.                                **Expiry**

 

(a)                           The Issuing Bank will be released from its obligationsunder this Bank Guarantee on the date (if any) notified by the Beneficiary tothe Issuing Bank as the date upon which the obligations of the Issuing Bankunder this Bank Guarantee are released.

 

(b)                           Unless previously released under paragraph (a) above,on[                   ] p.m.([London] time) on the Expiry Date the obligations of the Issuing Bank underthis Bank Guarantee will cease with no 

 

155

----

 

further liability on the part of the IssuingBank except for any Demand validly presented under the Bank Guarantee thatremains unpaid.

 

(c)                            When the Issuing Bank is no longer under any furtherobligations under this Bank Guarantee, the Beneficiary must return the originalof this Bank Guarantee to the Issuing Bank.

 

4.                                **Payments**

 

Allpayments under this Bank Guarantee shall be made in the Base Currency or anOptional Currency and for value on the due date to the account of theBeneficiary specified in the Demand.

 

5.                                **Delivery of Demand**

 

EachDemand shall be in writing, and, unless otherwise stated, may be made by letteror fax and must be received in legible form by the Issuing Bank at its addressand by the particular department or officer (if any) as follows:

 

[Address of Issuing Bank]

 

Attention:                                               [                   ]

 

6.                                **Assignment**

 

TheBeneficiary’s rights under this Bank Guarantee may not be assigned ortransferred.

 

7.                                **ISP 98**

 

Exceptto the extent it is inconsistent with the express terms of this Bank Guarantee,this Bank Guarantee is subject to the International Standby Practices (ISP 98), InternationalChamber of Commerce Publication No. 590.

 

8.                                **Governing Law**

 

ThisBank Guarantee is governed by English law.

 

9.                                **Jurisdiction**

 

Thecourts of England have exclusive jurisdiction to settle any dispute arising outof or in connection with this Bank Guarantee.

 

Yoursfaithfully

 

MerchantBanking, Skandinaviska Enskilda Banken AB (publ)

 

By:

 

156

----

 

**Schedule to Bank GuaranteeForm of Demand**

 
| To: | Merchant  Banking, Skandinaviska Enskilda Banken AB (publ) |
|-----|------------------------------------------------------------|

 

[Date]

 

DearSirs

 

**Bank Guarantee. No. [                   ]issued in favour of [BENEFICIARY] (the “Bank Guarantee”)**

 

Werefer to the Bank Guarantee. Terms defined in the Bank Guarantee have the samemeaning when used in this Demand.

 

1.                                We certify that the sum of[                   ]is due [and has remained unpaid for at least[                   ]Business Days] [under [set out underlying contract or agreement]]. We thereforedemand payment of the sum of[                   ].

 

2.                                Payment should be made to the following account:

 

Name:

 

Account Number:

 

Bank:

 

3.                                The date of this Demand is not later than the ExpiryDate.

 
| Yours  faithfully       |                    |
|-------------------------|-------------------------|
|                    |                    |
|                    |                    |
| (Authorised  Signatory) | (Authorised  Signatory) |
|                    |                    |
|                    |                    |
|                    | For                     |
|                    |                    |
|                    | [BENEFICIARY]           |

 

157

----

 

**Schedule13****FORM OF RESIGNATION LETTER**

 

To:                             [                   ]as Agent

 

From:               [*resigning Obligor*]and Deukalion Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH

 

Dated:

 

DearSirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH - €330,000,000 FacilityAgreement dated 17 June 2008****(the “Agreement”)**

 

1.                                We refer to the Agreement. This is a ResignationLetter. Terms defined in the Agreement have the same meaning in thisResignation Letter unless given a different meaning in this Resignation Letter.

 

2.                                Pursuant to [Clause 28.3 (*Resignation of a Borrower*)]/[Clause 28.5 (*Resignation of a Guarantor*)], we requestthat [*resigning Obligor*] bereleased from its obligations as a [Borrower]/[Guarantor] under the Agreementand the Finance Documents.

 

3.                                We confirm that:

 

(a)                                  no Default is continuing or would result form theacceptance of this request; and

 

(b)                                  this request is given in relation to a Third PartyDisposal of [*resigning Obligor*];

 

(c)                                   the Net Sale Proceeds have been or will be applied inaccordance with Clause 11.5 (*Mandatoryprepayment- Net Sale Proceeds*).

 

4.                                This letter is governed by English law.

 
|                                   |                  |   |
|----------------------------------------|-----------------------|--------|
|                                   |                  |
| Deukalion  Einhundertvierundzwanzigste |                  |
| Vermögensverwaltungs  - GmbH      | [*resigning Obligor*] |
|                                   |                  |
| By:                                    | By:                   |

 

158

----

 

**SIGNATURE PAGES**

 

**The****Company**

 

DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH

 

Address:           Dr. – Rudolf – Sachtleben – Str. 447198, DuisburgGermany

 

Fax:+49 (2066) 22-3201

 

Email:w.d.griebler@sachtleben.de

 

Attention:Wolf-Dieter Griebler

 

By:DR MARCUS BRUNE

 

 

**The****Original Borrowers**

 

DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH

 

By:DR MARCUS BRUNE

 

 

SachtlebenChemie GmbH

 

By:DR MARTIN BURGHOLTE                                                              PROF WOLF-DIETER GRIEBLER

 

 

WhitePigments Holding Oy

 

By:UDO PINGER

 

 

KemiraPigments Oy

 

By:HANNU VIROLAINEN

 

 

**The****Original Guarantors**

 

DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH

 

By:DR MARCUS BRUNE

 

----

 

SachtlebenChemie GmbH

 

 

By:DR MARTIN BURGHOLTE                                                              PROF WOLF-DIETER GRIEBLER

 

WhitePigments Holding Oy

 

By:UDO PINGER

 

 

KemiraPigments Oy

 

By: HANNUVIROLAINEN

 

 

**The Arranger**

 

MerchantBanking, Skandinaviska Enskilda Banken AB (publ)

 

By:MALCOLM CROW                                                            ÄSA SAMUELSSON

 

 

NordeaBank Finland plc

 

By:ESA RAITANEN                                                                            JUHA-MATTI PELTOMAA

 

 

**The Original Lenders**

 

SkandinaviskaEnskilda Banken AB (publ)

 

By:MALCOLM CROW                                                            ÄSA SAMUELSSON

 

 

NordeaBank Finland Plc

 

By:ESA RAITANEN                                                                            JUHA-MATTI PELTOMAA

 

----

 
| **The Agent**                                              |
|------------------------------------------------------------|
|                                                       |
| Merchant Banking, Skandinaviska Enskilda  Banken AB (publ) |
|                                                       |   |
| Address:                                                   | Skandinaviska  Enskilda Banken AB (publ) |
|                                                       | Rissneleden  110 |
|                                                       | SE-106  40 Stockholm |
|                                                       |   |
| Attention:                                                 | SCO |
|                                                       |   |
| E-mail:                                                    | sco@seb.se |
|                                                       |   |
| Fax  number:                                               | +  46 8 611 03 84 |
|                                                       |   |
| With  a copy to:                                           |   |
| Address:                                                   | Loan  Agency |
|                                                       | Capital  Markets, SEB |
|                                                       | Scandinavian  House |
|                                                       | 2  Cannon Street |
|                                                       | London  EC4M 6XX |
|                                                       |   |
| E-mail:                                                    | agency@seb.co.uk |
| Fax  number:                                               | +  44 207 329 2304 |
|                                                       |   |
| By:  MALCOLM CROW                                          | ÄSA SAMUELSSON |
|                                                       |   |
|                                                       |   |
| **The****Security Agent**                                  |   |
|                                                       |   |
| Merchant Banking, Skandinaviska Enskilda  Banken AB (publ) |
|                                                       |   |
| Address:                                                   | Loan  Agency |
|                                                       | Capital  Markets, SEB |
|                                                       | Scandinavian  House |
|                                                       | 2  Cannon Street |
|                                                       | London  EC4M 6XX |
|                                                       |   |
| E-mail:                                                    | agency@seb.co.uk |
| Fax  number:                                               | +  44 207 329 2304 |
|                                                       |   |
| Attention:                                                 | Loan  Agency |
|                                                       |   |
| By:  MALCOLM CROW                                          | ÄSA SAMUELSSON |
|                                                       |   |
| **The****Issuing Bank**                                    |   |
|                                                       |   |
| Merchant Banking, Skandinaviska Enskilda  Banken AB (publ) |
|                                                       |   |
| By:  MALCOLM CROW                                          | ÄSA SAMUELSSON |

 

----