**Exhibit10.4**

 

**CONFORMED COPY**

 

*€330,000,000*

 

FACILITYAGREEMENT

 

 

Dated17 June 2008

 

for

* *

*DEUKALIONEINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS - GMBH*

* *

 

arranged by

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

 

with

 

*MERCHANTBANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)*

actingas Agent

 

and

 

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

actingas Security Agent

 

and

 

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

actingas Issuing Bank

 

----

 

**CONTENTS**

 
| **CLAUSE**                                               | ** **                                          | **PAGE** |
|----------------------------------------------------------|-----------------------------------------------------|----------|
| ** **                                               |                                                |     |   |
| **SECTION 1**                                       |
| ** **                                               |
| **INTERPRETATION**                                       |
| 1.                                                       | Definitions and interpretation                      |     | 3 |
|                                                     |                                                |     |   |
| **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                | ** ** |     |
| **SCHEDULE 3** Requests                             | ** ** |     |
| **SCHEDULE 4** Mandatory Cost  formulae             | ** ** |     |
| **SCHEDULE 5** Form of  Transfer Certificate   | ** ** |     |
| **SCHEDULE 6** Form of  Accession Letter       | ** ** |     |
| **SCHEDULE 7** Security Agency  Provisions          | ** ** |     |
| **SCHEDULE 8** Form of  Compliance Certificate | ** ** |     |
| **SCHEDULE 9** Existing Security                    | ** ** |     |
| **SCHEDULE 10** Timetables                          | ** ** |     |
| **SCHEDULE 11** Form of  Letter of Credit      | ** ** |     |
| **SCHEDULE 12** Form of Bank  Guarantee        | ** ** |     |
| **SCHEDULE 13** Form of  Resignation Letter    | ** ** |     |

 

ii

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THIS AGREEMENT is dated17 June 2008 and made between:

 

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

 

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

 

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

 

(4)                          MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) and NORDEABANK FINLAND PLC as mandated lead arrangers (whether acting individually ortogether the “**Arranger**”);

 

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

 

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

 

(7)                          MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) as securityagent for the Finance Parties (the “**SecurityAgent**”); and

 

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

 

IT IS AGREED asfollows:

 

**SECTION ****1**

 

**INTERPRETATION**

 

1.                               **DEFINITIONS AND INTERPRETATION**

 

1.1                         **Definitions**

 

In this Agreement:

 

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

 

“**Accession Letter**” means a 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*).

 

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

 

“**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 lettersof credit issued under that Ancillary Facility; and

 

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

 

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

 

For the purposes ofthis definition:

 

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

 

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

 

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

 

“**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 or registration.

 

“**Availability Period**” means:

 

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

 

(b)                                in relation to Facility B, the period from and including the date ofthis Agreement to and including the Business Day one month before theTermination 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 toa Facility, a Lender’s Commitment under that Facility minus:

 

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

 

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

 

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

 

other than, in relationto any proposed Utilisation under Facility B only, that Lender’s participationin any Facility B Utilisations that are due to be repaid or prepaid on orbefore 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.

 

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“**Base Currency Amount**” means:

 

(a)                                  in relation to a Utilisation, the amount specified in the UtilisationRequest delivered by a Borrower for that Utilisation (or, if the amountrequested is not denominated in the Base Currency, that amount converted intothe Base Currency at the Agent’s Spot Rate of Exchange on the date which isthree Business Days before the Utilisation Date or, if later, on the date theAgent receives the Utilisation Request and, in the case of a Letter of Creditor Bank Guarantee, as adjusted under Clause 6.8 (*Revaluation of Letters of Credit and Bank Guarantees*));

 

(b)                                 in relation to an Ancillary Commitment, the amount specified in thenotice delivered to the Agent by the Company pursuant to paragraph (a) ofClause 9.3 (*Request for Ancillary Facilities*),

 

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

 

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

 

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

 

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

 

exceeds:

 

(b)                                the amount which that Lender would be able to obtain by placing anamount equal to the principal amount or Unpaid Sum received by it on depositwith a leading bank in the Relevant Interbank Market for a period starting onthe Business Day following receipt or recovery and ending on the last day ofthe 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 (other than pursuant toany Security Document or any Permitted Security constituted by either a nettingor set-off arrangement entered into by members of the Group in the ordinarycourse of their banking arrangements or a lien arising under the general termsand conditions of banks 

 

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or Sparkassen (*Allgemeine Geschäftsbedingungen der Banken oderSparkassen*) with whom any member of the Group maintains its bankingarrangements);

 

(c)                                 denominated and payable in freely transferable and freely convertiblecurrency; and

 

(d)                                capable of being remitted to an Obligor.

 

“**Cash Equivalent Investments**” means:

 

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

 

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

 

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

 

in each case notsubject to any Security or Quasi Security (other than pursuant to any SecurityDocument or any Permitted Security constituted by 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),denominated and payable in freely transferable and freely convertible currencyand the proceeds of which are capable of being remitted to an 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*).

 

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“**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, thegiving of notice, the making of any determination under the Finance Documentsor any combination of any of the foregoing) be an Event of Default.

 

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

 

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

 

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

 

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

 

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

 

and which (in either suchcase) is not caused by, and is beyond the control of, the Party whoseoperations 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-made structures, whether aboveor below ground);

 

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

 

(c)                                 land (including land under water).

 

“**Environmental Law**” means all laws andregulations of any relevant jurisdiction which:

 

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

 

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

 

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

 

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

 

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

 

(a)                                 the applicable Screen Rate; or

 

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

 

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

 

as of the SpecifiedTime on the Quotation Day for the offering of deposits in euro for a periodcomparable 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 the Base Currency setopposite its name under the heading “Facility A Commitment” in Part II ofSchedule 1 (*The Original**Parties*) and the amount of any otherFacility A Commitment transferred to it under this Agreement; and

 

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

 

to the extent notcancelled, 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 the Base Currency setopposite its name under the heading “Facility B Commitment” in Part II ofSchedule 1 (*The Original**Parties*) and the amount of any otherFacility B Commitment transferred to it under this Agreement; and

 

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

 

to the extent notcancelled, reduced or transferred by it under this Agreement (including areduction pursuant to Clause 9 (*AncillaryFacilities*)).

 

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

 

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

 

“**Facility Office**” means the office oroffices notified by a Lender to the Agent in writing on or before the date itbecomes a Lender (or, following that date, by not less than five Business Days’written notice) as the office or offices through which it will perform itsobligations under 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 anyindebtedness for or in respect of the following (for the avoidance of doubt,excluding any liabilities in respect of pension schemes or otherpost-employment benefit schemes but including the Reborrowing Loan):

 

(a)                                 moneys borrowed;

 

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

 

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

 

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

 

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

 

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

 

(g)                                any derivative transaction entered into in connection with protectionagainst or benefit from fluctuation in any rate or price (and, when calculatingthe value of any derivative transaction, only the marked to market value shallbe taken into account);

 

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

 

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

 

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institution in respectof an underlying liability of an entity which is not a member of the Groupwhich liability would fall within one of the other paragraphs of thisdefinition; and

 

(j)                                    the amount of any liability in respect of any guarantee or indemnity forany 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 PigmentsHolding Oy, a company incorporated in Finland with business identity code2196924-0.

 

“**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 Finnish Holdco;

 

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

 

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

 

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

 

“**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 of receivables owned by theCompany;

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Group**” means:

 

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

 

(b)                                from the date of first Utilisation of any Facility, the Company and itsSubsidiaries 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 

 

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

 

“**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 Agreement regarding the TitaniumDioxide Joint Venture dated 21 May 2008;

 

(ii)                                 the Master Agreement regarding the Titanium Dioxide Joint Venture dated21 May 2008;

 

(iii)                              the Master Agreement regarding the Implementation of the TitaniumDioxide 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 granted or refused at thediscretion of a court and the limitation of enforcement by laws relating toinsolvency, reorganisation and other laws generally affecting the rights ofcreditors;

 

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

 

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

 

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

 

“**Lender**” means:

 

(a)                                  any Original Lender; and

 

(b)                                 any bank, financial institution, trust, fund or other entity which hasbecome a Party in accordance with Clause 27 (*Changesto the Lenders*),

 

which in each case hasnot ceased to be a Party in accordance with the terms of this Agreement.

 

“**Letter of Credit**” means a letter of credit,substantially in the form set out in Schedule 11 (*Form of Letter of Credit*) or in any other 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 or Interest Period ofthat Loan) the arithmetic mean of the rates (rounded upwards to four decimalplaces) as supplied to the Agent at its request quoted by the Reference Banksto leading banks in the London interbank market,

 

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

 

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

 

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

 

“**Majority Lenders**” means:

 

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

 

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

 

For the purpose of thisdefinition, the provisions of Clause 9.5 (*Adjustmentsto 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*).

 

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“**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 materialadverse effect on or material adverse change in:

 

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

 

(b)                                 the ability of any Obligor to perform and comply with its paymentobligations under any Finance Document or its obligations under Clause 24.1 (*Financial condition*);

 

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

 

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

 

“**Material Subsidiary**” means:

 

(a)                                  a Subsidiary of the Company listed in the list of Material Subsidiariesprovided to the Agent under Clause 4.1 (*Initialconditions precedent*);

 

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

 

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

 

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

 

For the purposes ofthis definition:

 

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

 

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

 

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

 

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

 

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

 

The above rules willonly 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 in connection with thatsale, transfer or disposal;

 

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

 

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

 

(d)                                the amount of indebtedness secured by the asset which is the subject ofthat sale, transfer or disposal which is repaid out of the cash proceeds ofthat 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 unaudited consolidatedfinancial statements of the Group for the period ended 31 December 2007;

 

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

 

(c)                                 in relation to each Original Obligor other than the Company and FinnishHoldco, its unaudited consolidated financial statements for its financial yearended 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.

 

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“**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*).

 

“**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 or interest in anyPermitted Joint Venture;

 

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

 

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

 

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

 

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

 

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

 

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

 

(iv)                           until the date of delivery ofa Compliance Certificate showing that the ratio of Net Debt (excluding theamount of any proceeds of any new equity or Financial Indebtedness subordinatedto the Facilities on terms acceptable to the Majority Lenders (actingreasonably) received by a member of the Group from a person which is not amember of the Group and which is subsequently used to fund any such acquisition(or associated costs and expenses) or to refinance Financial Indebtednessremaining in any such acquired companies or businesses) on any Quarter Date toEBITDA for the Relevant Period ending on that Quarter Date does not exceed2.50:1.00:

 

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

 

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company or business atthe date of acquisition) when aggregated with the consideration (includingassociated costs and expenses) for any other acquisition permitted under thisparagraph (d) (and any Financial Indebtedness remaining in any suchacquired companies or businesses at the date of acquisition) less the proceedsof any new equity or Financial Indebtedness subordinated to the Facilities onterms acceptable to the Majority Lenders (acting reasonably) received by amember of the Group from a person which is not a member of the Group and usedto fund any such acquisition (or associated costs and expenses) or to refinanceFinancial Indebtedness remaining in any such acquired companies or businessdoes not in any financial year of the Company exceed €10,000,000 (or itsequivalent in another currency or currencies); and

 

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

 

(v)                              to the extent that the acquired company would constitute a MaterialSubsidiary or be required to become a Guarantor to ensure that the Companycomplies with its obligations under Clause 25.22 (*Guarantees and Security*) based on calculations for theRelevant Period referred to in paragraph (vi) below if the relevant testswere recalculated (A) consolidating the financial statements of thecompany to be acquired (consolidated if that company has Subsidiaries) for thatRelevant Period with those of the Group on a pro forma basis and (B) as ifthe consideration for the proposed acquisition had been paid at the start ofthat Relevant Period, and to the extent lawful, valid and effective Security,in form and substance satisfactory to the Security Agent, is given in favour ofthe Security Agent for the benefit of the Finance Parties over all the sharesand material assets of the acquired company upon or immediately following itsacquisition;

 

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

 

(A)                           it would have complied with the requirements of paragraphs (a) and (b) ofClause 24.1 (*Financial condition*)for the Relevant Period ending on the last Quarter Date for which financialstatements are available falling before that certificate is given, if thecovenant tests for that Relevant Period were recalculated (i) consolidatingthe financial statements of the company or business to be acquired (consolidatedif that company has Subsidiaries) for that Relevant Period with those of theGroup on a pro forma basis and taking into account reasonable synergies asconfirmed by the Company’s auditors (ii) as if the consideration for theproposed acquisition had been paid at the start of that Relevant Period; and

 

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

 

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

 

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

 

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

 

(e)                                  an acquisition of shares or securities permitted pursuant to Clause25.23 (*Issue of shares*); and

 

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

 

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

 

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

 

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

 

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

 

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

 

(e)                                 of assets to a Permitted Joint Venture;

 

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

 

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

 

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

 

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

 

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

 

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and provided furtherthat such sale, lease, transfer or disposal is on terms not less advantageousto the relevant Obligor than arm’s length terms;

 

(k)                                 of assets by an Obligor to another member of the Group which is not anObligor provided that the aggregate of the consideration for such assets doesnot, in any financial year of the Company, when aggregated with theconsideration for any other assets sold by an Obligor to a member of the Groupwhich is not an Obligor in that financial year exceed €2,000,000 (or itsequivalent in another currency or currencies) and provided further that suchsale, 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 granted in the ordinarycourse of trading of the disposing entity;

 

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

 

(n)                                where the net consideration receivable (when aggregated with the netconsideration receivable for any other sale, lease, transfer or other disposal,other than any permitted under paragraphs (a) to (m) above), does notexceed €10,000,000 (or its equivalent in another currency or currencies) in anyfinancial year of the Company.

 

“**Permitted Financial Indebtedness**” means:

 

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

 

(b)                                any Financial Indebtedness owed to the Owners, which from the date ofthe first Utilisation of Facility A is subordinated under the SubordinationAgreement (including Financial Indebtedness arising pursuant to any ShareholderLoan) or which is otherwise subordinated on terms acceptable to the MajorityLenders (acting reasonably);

 

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

 

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

 

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

 

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

 

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

 

(h)                                any Financial Indebtedness arising under a Permitted HedgingTransaction;

 

(i)                                    any Financial Indebtedness of any person acquired by a member of theGroup after the date of this Agreement which is incurred under arrangements inexistence at the date of acquisition, but not incurred or increased or itsmaturity date extended in contemplation of, or since, that acquisition, andoutstanding only for a period of three months following the date ofacquisition;

 

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

 

(k)                                 the Reborrowing Loan;

 

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

 

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

 

“**Permitted Guarantee**” means:

 

(a)                                 any guarantee arising under any Finance Document;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Permitted Hedging Transaction**” means:

 

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

 

(b)                                interest rate hedging agreements and spot and forward delivery foreignexchange contracts entered into in the ordinary course of business and not forspeculative purposes; and

 

(c)                                 any derivative transaction entered into in connection with protectionagainst or benefit from fluctuation in any rate or price (including in relationto electricity) and entered into for the hedging of actual or projected realexposures arising in the ordinary course of trading activities of a member ofthe Group and not for speculative purposes.

 

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

 

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

 

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(b)                                the Joint Venture is incorporated or established, and carries on itsprincipal business, in any jurisdiction in which joint ventures are notprohibited to be entered into under any law applicable to the Owners;

 

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

 

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

 

“**Permitted Loan**” means:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(h)                                a loan, credit or other arrangement having a similar effect made by amember of the Group to an employee or director of any member of the Group if theamount of that loan, when aggregated with the amount of all loans to employeesand directors by members of the Group, does not at any time exceed €1,000,000(or its equivalent in another currency or currencies);

 

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

 

(j)                                    a loan, credit or other arrangement having a similar effect made by amember of the Group which is not an Obligor to an Obligor if that member of theGroup has acceded to the Subordination Agreement;

 

(k)                                 the US JV Loan; or

 

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

 

“**Permitted Security**” means:

 

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

 

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

 

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

 

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

 

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

 
| (i)    |   | the Security or Quasi Security was not created in  contemplation of the acquisition of that asset by a member of the Group;                    |
|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                           |
| (ii)   |   | the principal amount secured has not been increased  in contemplation of or since the acquisition of that asset by a member of the  Group; and |
|   |   |                                                                                                                                           |
| (iii)  |   | the Security or Quasi Security is removed or  discharged within three months of the date of acquisition of such asset;                         |

 

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

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

 

22

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| (ii)   |   | the principal amount secured has not increased in  contemplation of or since the acquisition of that company; and             |
|--------|--------|-------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                          |
| (iii)  |   | the Security or Quasi Security is removed or  discharged within three months of that company becoming a member of the  Group; |

 

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

 

(h)                                any Security or Quasi Security over goods and documents of title togoods arising in the ordinary course of letter of credit transactions notprohibited by this Agreement;

 

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

 

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

 

(k)                                 any lien arising under the general terms and conditions of banks orSparkassen (*Allgemeine Geschäftsbedingungender Banken oder Sparkassen*) with whom any member of the Groupmaintains its banking arrangements;

 

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

 

(m)                              any Security or Quasi Security, securing indebtedness the principalamount of which (when aggregated with the principal amount of any otherindebtedness which has the benefit of Security or Quasi Security given by anymember 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 any member of the Groupwhich is not an Obligor so long as any payments or assets distributed as aresult of such liquidation or reorganisation are distributed to other membersof the Group; or

 

23

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

 
| (i)    |   | all of the business and assets of Finnish Holdco and  Kemira Pigments are retained by the surviving entity, being one of them;                                                                                                                                                                                            |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                      |
| (ii)   |   | the surviving entity of that merger is liable for  the obligations of the Obligor it has merged with; and                                                                                                                                                                                                                 |
|   |   |                                                                                                                                                                                                                                                                                                                      |
| (iii)  |   | the Agent and the Security Agent are given ten  Business Days’ notice by the Company of that proposed merger and the Security  Agent, acting reasonably, is satisfied that the Finance Parties will enjoy  the same or equivalent Security over the same assets and over the surviving  entity and the shares in it. |

 

(d)                                any payments or other transactions contemplated by and set out in steps1 to 17 of the section of the Structuring Report entitled “JV – Structure forEurope” (including any repayment of Existing Debt which is funded by a FacilityA 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, 31March, 30 June and 30 September.

 

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

 
| (a)    |   | sell, transfer or otherwise dispose of any of its  assets on terms whereby they are or may be leased to or re-acquired by any  other member of the Group;         |
|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                              |
| (b)    |   | sell, transfer or otherwise dispose of any of its  receivables on recourse terms;                                                                                 |
|   |   |                                                                                                                                                              |
| (c)    |   | enter into any arrangement under which money or the  benefit of a bank or other account may be applied, set-off or made subject to  a combination of accounts; or |
|   |   |                                                                                                                                                              |
| (d)    |   | enter into any other preferential arrangement having  a similar effect,                                                                                           |

 

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

 

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

 

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

 

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

 

unless market practicediffers in the Relevant Interbank Market for a currency, in which case theQuotation Day for that currency will be determined by the Agent in accordancewith market practice in the Relevant Interbank Market (and if quotations forthat currency and period would normally be given by leading banks in theRelevant Interbank Market on more than one day, the Quotation Day will be the lastof 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.

 

24

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

 

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

 

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

 

(a)                                 itsjurisdiction of incorporation;

 

(b)                                anyjurisdiction where any asset subject to or intended to be subject to theSecurity to be created by it is situated;

 

(c)                                 anyjurisdiction where it conducts its business; and

 

(d)                                thejurisdiction whose laws govern the perfection of any of the Security Documentsentered 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 BLoans:

 

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

 

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

 

(c)                                  in the same currency as (i) the maturing Facility B Loan (unless itarose as a result of the operation of Clause 8.2 (*Unavailability of a currency*)) or (ii) the claim underthe Letter of Credit or Bank Guarantee; and

 

(d)                                 made or to be made to the same Borrower for the purpose of (i) refinancinga maturing Facility B Loan or (ii) satisfying the obligations of theBorrower to pay the amount of a claim under the Letter of Credit or BankGuarantee 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 

 

25

----

 

with the commercialregister (*Handelsregister*) of thelocal court (*Amtsgericht*) ofDuisburg under the registration number HR B 1 96 69.

 

“**Screen Rate**” means:

 
| (a)    |   | in relation to LIBOR, the British Bankers  Association Interest Settlement Rate for the relevant currency and period;  and                  |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                        |
| (b)    |   | in relation to EURIBOR, the percentage rate per  annum determined by the Banking Federation of the European Union for the  relevant period, |

 

displayed on theappropriate 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 agreement orarrangement 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 dated  28 April 2005 (as amended) between Rockwood Specialities Group GmbH as  lender and Knight Dritte Beteiligungs - GmbH (now Sachtleben Chemie) as  borrower relating to a loan in an amount of €16,229,175.47;                                       |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                               |
| (b)    |   | a loan made available pursuant to an agreement dated  30 July 2004 (as amended) between Knight Erste Beteiligungs - GmbH (now  Rockwood Specialities Group GmbH) as lender and Knight Dritte Beteilingungs -  GmbH (now Sachtleben Chemie) as borrower relating to a loan in an amount of  €266,300,000; |
|   |   |                                                                                                                                                                                                                                                                                                               |
| (c)    |   | a loan made available by Kemira Oy to Kemira  Pigments maturing on 9 December 2008;                                                                                                                                                                                                                           |
|   |   |                                                                                                                                                                                                                                                                                                               |
| (d)    |   | a loan made available by Kemira Oy to Kemira  Pigments maturing on 27 June 2008;                                                                                                                                                                                                                              |
|   |   |                                                                                                                                                                                                                                                                                                               |
| (e)    |   | a loan made available by Kemira Oy to Kemira  Pigments maturing on 9 December 2008; and                                                                                                                                                                                                                       |
|   |   |                                                                                                                                                                                                                                                                                                               |
| (f)    |   | a loan made available by Kemira Oy to Kemira  Pigments maturing on 27 June 2008.                                                                                                                                                                                                                              |

 

**SpecifiedTime**” means a time determined inaccordance with Schedule 10 (*Timetables*).

 

26

----

 

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

 

“**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 the holding company;

 

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

 

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

 

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

 

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

 

and, for this purpose,a company or corporation or other legal entity shall be treated as beingcontrolled by a holding company if such holding company has the right or is ina factual position to otherwise exercise control in respect of the first withinthe meaning given to it in section 17 of the German Stock Corporation 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 TARGET2is open for the settlement 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.

 

27

----

 

“**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.

 

“**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 atransfer, the later of:

 

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

 

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

 

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

 

“**US JV Loan**” means:

 

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

 

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

 

“**Utilisation**” means a Loan, a Letter 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 in this Agreementto:

 

(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 presentand future properties, revenues and rights of every description;

 

28

----

 

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

 

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

 

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

 

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

 

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

 

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

 

(iv)                             a “**Finance****Document**” or any other agreement orinstrument 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 or theaddition of any new facility under that Finance Document or other agreement orinstrument;

 

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

 

(vi)                             a “**person**” includes anyindividual, firm, company, corporation, government, state or agency of a stateor any association, trust, joint venture, consortium or partnership (whether ornot having separate legal personality);

 

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

 

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

 

29

----

 

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

 

(C)                            the Issuing Bank or, as the case may be, Ancillary Lender, beingsatisfied that it has no further liability under that Letter of Credit, BankGuarantee 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 anyregulation, rule, official directive, request or guideline (whether or nothaving the force of law) of any governmental, intergovernmental orsupranational body, agency, department or regulatory, self-regulatory or otherauthority or organisation;

 

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

 

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

 

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

 

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

 

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

 

1.3                         **Third Party Rights**

 

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

 

30

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**SECTION ****2**

 

**THE FACILITIES**

 

2.                               **THE FACILITIES**

 

2.1                         **The Facilities**

 

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

 

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

 

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

 

2.2                         **Finance Parties’ rights and obligations**

 

(a)                          The obligations of each Finance Party under the Finance Documents areseveral.  Failure by a Finance Party toperform its obligations under the Finance Documents does not affect theobligations 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 in connection with the FinanceDocuments are separate and independent rights and any debt arising under theFinance Documents to a Finance Party from an Obligor shall be a separate andindependent debt.

 

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

 

3.                               **PURPOSE**

 

3.1                         **Purpose**

 

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

 

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

 

3.2                         **Monitoring**

 

No Finance Party isbound to monitor or verify the application of any amount borrowed pursuant tothis Agreement.

 

4.                               **CONDITIONS OF UTILISATION**

 

4.1                         **Initial conditions precedent**

 

No Borrower may delivera Utilisation Request unless the Agent has received all of the documents andother evidence listed in Part I of Schedule 2 

 

31

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

 

4.2                         **Further conditions precedent**

 

(a)                          The Lenders will only be obliged to comply with Clause 5.4 (*Lenders’ participation*) if on the date ofthe Utilisation Request and (in relation to sub paragraphs (ii) and (iii) ofthis Clause 4.2) on the proposed Utilisation Date:

 

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

 

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

 

(B)                            certifying that the ratio of (i) the aggregate of Net Debt on thedate of that Utilisation Request and the amount of the proposed Utilisation to (ii) EBITDAfor the 12 month period ending on the most recent month end or, if theUtilisation Request is delivered within 7 Business Days of the start of amonth, for the 12 month period ending on the next-to-last month end does notexceed 4.00:1.00, setting out (in reasonable detail) computations as tocompliance with that ratio;

 

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

 

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

 

4.3                         **Conditions relating to Optional Currencies**

 

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

 

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

 

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

 

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

 

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

 

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

 

32

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4.4                         **Maximum number of Utilisations**

 

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

 

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

 

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

 

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

 

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

 

(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.

 

33

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**SECTION ****3**

 

**UTILISATION**

 

5.                               **UTILISATION - LOANS**

 

5.1                         **Delivery of a Utilisation Request**

 

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

 

5.2                         **Completion of a Utilisation Request**

 

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

 
| (i)    |   | it specifies that it is for a Loan;                                                                                                                                                                                                                                                                                                                                |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| (ii)   |   | it identifies the Facility to be utilised;                                                                                                                                                                                                                                                                                                                         |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| (iii)  |   | the proposed Utilisation Date is a Business Day  within the Availability Period applicable to that Facility;                                                                                                                                                                                                                                                       |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| (iv)   |   | the currency and amount of the Utilisation comply  with Clause 5.3 (*Currency and amount*);                                                                                                                                                                                                                                                                        |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| (v)    |   | the proposed Interest Period complies with Clause 13  (*Interest Periods*); and                                                                                                                                                                                                                                                                                    |
|   |   |                                                                                                                                                                                                                                                                                                                                                               |
| (vi)   |   | it specifies the account and bank (which must be in  the principal financial centre of the country of the currency of the  Utilisation or, in the case of euro, the principal financial centre of a  Participating Member State in which banks are open for general business on  that day or London) to which the proceeds of the Utilisation are to be  credited. |

 

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

 

5.3                         **Currency and amount**

 

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

 

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

 

(i)            if the currencyselected is the Base Currency, a minimum of €10,000,000 (and integral multiplesthereafter) for Facility A and €5,000,000 (and integral multiples of €1,000,000thereafter) for Facility B or in either case, if less, the Available Facility;

 

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

 

(iii)          if the currencyselected is any other Optional Currency, the minimum amount (and, if required,integral multiple) specified by the Agent pursuant to paragraph (b)(ii) ofClause 4.3 (*Conditions relating to OptionalCurrencies*) or, if less, the Available Facility; and

 

(iv)          in any event such thatits Base Currency Amount is less than or equal to the Available Facility.

 

(c)                          Each Borrower may borrow Facility A Loans in the maximum aggregateamounts 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 been met, each Lendershall make its participation in each Loan available by the Utilisation Datethrough its Facility Office.

 

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

 

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

 

5.5                         **Cancellation of Commitment**

 

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

 

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

 

6.                               **UTILISATION - LETTERS OF CREDIT AND BANK GUARANTEES**

 

6.1                         **General**

 

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

 

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

 

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

 

(iii)                               “**Proportion**” means, inrelation to a Lender in respect of any Letter of Credit or Bank Guarantee, theproportion (expressed as a percentage) borne by that Lender’s AvailableCommitment under Facility B to the Available Facility under Facility Bimmediately 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 awritten 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 perioddetermined under this Agreement for which the Issuing Bank is under a liabilityunder a Letter of Credit or Bank Guarantee.

 

(b)                         Any reference in this Agreement to:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(d)                         In determining the amount of the Available Facility and a Lender’sProportion of a proposed Letter of Credit or Bank Guarantee for the purposes ofthis Agreement, the Available Commitment of a Lender will be calculatedignoring any cash cover provided for outstanding Letters of Credit or BankGuarantees.

 

6.2                         **Facility B**

 

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

 

6.3                         **Delivery of a Utilisation Request for Letters of Creditor Bank Guarantees**

 

A Borrower may requesta Letter of Credit or Bank Guarantee to be issued by delivery to the Agent of aduly completed Utilisation Request substantially in the form of Part IIIof Schedule 3 (*Utilisation Request - Lettersof Credit and Bank Guarantees*) not later than the Specified Time.

 

6.4                         **Completion of a Utilisation Request for Letters ofCredit and Bank Guarantees**

 

Each UtilisationRequest for a Letter of Credit or Bank Guarantee is irrevocable and will not beregarded as having been duly completed unless:

 

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

 

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

 

(c)                                  the currency and amount of the Letter of Credit or Bank Guarantee complywith Clause 5.3 (*Currency and amount*);

 

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

 

(e)                                  the Expiry Date of the Letter of Credit or Bank Guarantee falls on orbefore the date falling three Months after the Termination Date;

 

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

 

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

 

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6.5                         **Currency and amount**

 

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

 

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

 

(i)            if the currencyselected is the Base Currency, a minimum of €100,000 or, if less, the AvailableFacility;

 

(ii)           if the currencyselected is US dollars, a minimum of $100,000 or, if less, the AvailableFacility; or

 

(iii)          if the currencyselected is any other Optional Currency, the minimum amount (and, if required,integral multiple) specified by the Agent pursuant to paragraph (b)(ii) ofClause 4.3 (*Conditions relating to OptionalCurrencies*) or, if less, the Available Facility,

 

or, if less, suchamount as will result in the aggregate Base Currency Amounts of all outstandingLetters of Credit and all outstanding Bank Guarantees not exceeding the Letterof Credit and Bank Guarantee Limit.

 

6.6                         **Issue of Letters of Credit or Bank Guarantees**

 

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

 

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

 

(i)            in the case of a Letterof Credit or Bank Guarantee renewed in accordance with Clause 6.7 (*Renewal of a Letter of Credit or Bank Guarantee*),no Event of Default is continuing or would result from the proposed Utilisationand, in the case of any other Utilisation, no Default is continuing or wouldresult from the proposed Utilisation; and

 

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

 

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

 

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

 

6.7                         **Renewal of a Letter of Credit or Bank Guarantees**

 

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

 

(b)                         The Finance Parties shall treat any Renewal Request in the same way as aUtilisation Request for a Letter of Credit or Bank Guarantee except that theconditions set out in paragraphs (d) and (g) of Clause 6.4 (*Completion of a Utilisation Request for Letters ofCredit**or Bank Guarantees*)shall not apply.

 

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

 

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

 

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

 

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

 

6.8                         **Revaluation of Letters of Credit and Bank Guarantees**

 

(a)                          If any Letter of Credit or Bank Guarantee is denominated in an OptionalCurrency, the Agent shall at six monthly intervals after the date of thisAgreement, recalculate the Base Currency Amount of each Letter of Credit andBank Guarantee by notionally converting into the Base Currency the outstandingamount of that Letter of Credit or Bank Guarantee on the basis of the Agent’sSpot Rate of Exchange on the date of calculation.

 

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

 

7.                               **LETTERS OF CREDIT AND BANK GUARANTEES**

 

7.1                         **Immediately payable**

 

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

 

7.2                         **Assignments and transfers**

 

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

 

(b)                         If paragraph (a) and the conditions and procedure for transferspecified in Clause 27 (*Changes to theLenders*) are satisfied, then on the Transfer Date the Issuing Bankand 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 of Credit and BankGuarantees**

 

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

 

(b)                         Each Borrower shall pay to the Agent (for the account of each Lender) aletter of credit fee in arrear computed at the rate of the applicable Margin onthe outstanding amount of each Letter of Credit or Bank Guarantee requested byit for the period from the issue of that Letter of Credit or Bank Guaranteeuntil its Expiry Date.  This fee shall bedistributed according to each Lender’s Proportion of that Letter of Credit orBank Guarantee.

 

(c)                          The accrued letter of credit fee on the Letters of Credit and BankGuarantees shall be consolidated and payable on the last day of each successiveperiod of three months (or such shorter period as shall end on the Expiry Datefor that Letter of Credit or Bank Guarantee) starting on the date of thisAgreement.

 

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

 

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

 

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

 

7.4                         **Claims under a Letter of Credit or Bank Guarantee**

 

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

 

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

 

(c)                          Each Borrower acknowledges that the Issuing Bank:

 

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

 

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

 

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

 

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

 

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

 

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7.5                         **Indemnities**

 

(a)         Each Borrower shallimmediately 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 requested by that Borrower.

 

(b)        Each Lender shall(according to its Proportion) immediately on demand indemnify the Issuing Bankagainst any cost, loss or liability incurred by the Issuing Bank (otherwise thanby reason of the Issuing Bank’s gross negligence or wilful misconduct) inacting as the Issuing Bank under any Letter of Credit or Bank Guarantee (unlessthe Issuing Bank has been reimbursed by an Obligor pursuant to a FinanceDocument).

 

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

 

(d)        The Borrower whichrequested a Letter of Credit or Bank Guarantee shall immediately on demandreimburse any Lender for any payment it makes to the Issuing Bank under thisClause 7.5 (*Indemnities*) inrespect of that Letter of Credit or Bank Guarantee.

 

(e)         The obligations of eachLender under this Clause are continuing obligations and will extend to theultimate balance of sums payable by that Lender in respect of any Letter ofCredit or Bank Guarantee, regardless of any intermediate payment or dischargein whole or in part.

 

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

 

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

 

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

 

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

 

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(iv)          any incapacity or lackof power, authority or legal personality of or dissolution or change in themembers or status of an Obligor, any beneficiary under a Letter of Credit orBank Guarantee or any other person;

 

(v)           any amendment (howeverfundamental) or replacement of a Finance Document, any Letter of Credit or BankGuarantee or any other document or security;

 

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

 

(vii)         any insolvency orsimilar proceedings.

 

7.6                         **Rights of contribution**

 

No Obligor will beentitled to any right of contribution or indemnity from any Finance Party inrespect of any payment it may make under this Clause 7.

 

7.7                         **Role of the Issuing Bank**

 

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

 

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

 

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

 

(d)                         The Issuing Bank may rely on:

 

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

 

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

 

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

 

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

 

(g)                         The Issuing Bank is not responsible for:

 

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

 

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

 

Without affecting the responsibility of anyObligor for information supplied by it or on its behalf in connection with anyFinance Document, each Lender confirms to the Issuing Bank that it has been,and will continue to be, solely responsible for making its own independentappraisal and investigation of all risks arising under or in connection withany Finance Document, including but not limited to, those listed in paragraphs (a) to(d) of Clause 29.15 (*Credit appraisalby the Lenders*).

 

7.10                   **Address for notices**

 

The address and fax number (and the departmentor officer, if any, for whose attention the communication is to be made) of theIssuing Bank for any communication or document to be made or delivered under orin connection with the Finance Documents is that notified in writing to theAgent prior to the date of this Agreement or any substitute address, fax numberor department or officer as the Issuing Bank may notify to the Agent by notless than five Business Days’ notice.

 

7.11                   **Amendments and Waivers**

 

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

 

8.                               **OPTIONAL CURRENCIES**

 

8.1                         **Selection of currency**

 

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

 

8.2                         **Unavailability of a currency**

 

If before the Specified Time on any QuotationDay:

 

(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,

 

the Agent will give notice to the relevantBorrower to that effect by the Specified Time on that day. In this event, anyLender that gives notice pursuant to this Clause 8.2 will be required toparticipate in the Loan in the Base Currency (in an amount equal to that Lender’sproportion of 

 

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the Base Currency Amount or, in respect of aRollover Loan, an amount equal to that Lender’s proportion of the Base CurrencyAmount of the Rollover Loan that is due to be made) and its participation willbe treated as a separate Loan denominated in the Base Currency during thatInterest Period.

 

9.                               **ANCILLARY FACILITIES**

 

9.1                         **Establishment of Ancillary Facilities**

 

One or more Ancillary Facilities may from timeto time be established in favour of one or more Borrowers in accordance withthis Clause 9 by designating all or part of the Facility B Commitment of aLender as an Ancillary Commitment.

 

9.2                         **Types of Ancillary Facility**

 

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

 

(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 that Ancillary Facility;

 

(iii)                              the type or types of facility to comprise that Ancillary Facility (whichmust comply with Clause 9.2 (*Types of AncillaryFacility*));

 

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

 

(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 Agent acting on theinstructions of all the Facility B Lenders on or prior to receipt by the Agentof 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**

 

The Lender identified in a duly completedAncillary Facility Request shall become an Ancillary Lender authorised to makethe proposed Ancillary Facility available with effect from the proposedCommencement Date, if the following conditions 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 (*Voluntarycancellation of Ancillary Facilities*); and

 

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

 

the Facility B Commitment of the relevantLender will immediately be increased by an amount equal to the amount of theAncillary Commitment of that Ancillary Facility (or, if less, that part of itwhich 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 used only to finance (i) itsworking capital requirements and/or (ii) its general corporate purposes;

 

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

 

(iv)                             cancellation, termination or enforcement of the Ancillary Facility shallonly occur as described in Clause 9.8 (*Voluntary cancellation ofAncillary Facilities*), Clause 11 (*Prepayment and cancellation*) or Clause26.16 (*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**

 

The Company 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**

 

The Company may, if it gives the Agent and therelevant Ancillary Lender not less than 5 Business Days’ prior notice, cancelthe whole or any part of the Ancillary 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 is cancelled or expires andthe date of any such cancellation or expiry; and

 

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

 

(b)                         The Agent may assume, unless it has received notice tothe contrary in its capacity as agent for the Lenders, that no AncillaryFacility has 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**

 

The relevant Borrower under an AncillaryFacility shall repay or pay on the due date each amount payable under thatAncillary 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 bereduced in inverse chronological 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**

 

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

 

11.                         **PREPAYMENT AND CANCELLATION**

 

11.1                   **Illegality in relation to a Lender or the Issuing Bank**

 

If it becomes unlawful in any applicablejurisdiction for a Lender or the Issuing Bank to perform any of its obligationsas contemplated by this Agreement or to fund or maintain its participation inany Utilisation or to issue or leave outstanding any Letter of Credit or BankGuarantee:

 

(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 an Ancillary Lender**

 

If it becomes unlawful in any applicablejurisdiction for an Ancillary Lender to perform any of its obligations ascontemplated by this Agreement or any Ancillary Facility Document or to fund ormaintain its participation in any utilisation 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 procure the release ofany outstanding letter of credit, guarantee or other instrument issued by thatAncillary Lender in respect of that Borrower under each Ancillary Facility madeavailable by that Ancillary Lender and repay all amounts, if any, payable undereach such Ancillary Facility on the earlier of the next date on which anypayment or repayment is due under that facility occurring after the Agent hasnotified the Company or the date specified by the Ancillary Lender in thenotice delivered to 

 

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the Agent (being no earlier than the last dayof 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 any Letter of Credit orBank Guarantee;

 

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

 

(iv)                             if a Lender so requires and notifies the Agent within 30 days of theCompany notifying the Agent of the occurrence of a Change of Control Event, theAgent shall promptly notify the Company of the notification by that Lender andthe Company and that Lender shall negotiate in good faith the continuation ofthe participation of the respective Lender in the Facilities. If no agreementis reached within 30 days of the Lender notifying the Agent, the Agent shall,by not less than 10 days’ notice to the Company (the date specified in suchnotice being the “**Relevant LenderCancellation 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 ofshares in the Company, owned at the date of initial Utilisation of anyFacility; or

 

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

 

11.4                   **Voluntary cancellation**

 

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

 

11.5                   **Mandatory prepayment - Net Sale Proceeds**

 

(a)                          The Company shall ensure that an amount equal to 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 appliedwithin twelve months of receipt towards the purchase of other similar assetsfor use in the Group’s business; or

 

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

 

11.6                   **Application of Net Sale Proceeds prepayment**

 

(a)                          In this Clause 11.6, “**Receipt Date**” means the date on which any Net Sale Proceeds 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 - Insurance Proceeds**

 

(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 (or its equivalent inanother currency or currencies) in respect of any single claim or, whenaggregated with any other Insurance Proceeds received since the date of thisAgreement, exceed €3,000,000 (or its equivalent in another currency or currencies).

 

11.8                   **Application of Insurance Proceeds prepayment**

 

(a)                          In this Clause 11.8, “**Receipt Date**” means the date on which any Insurance 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**

 

Where Net Sale Proceeds and Insurance Proceedsinclude amounts which are intended to be used for a specific purpose within aspecified period (as set out in paragraph (b) of Clause 11.5 (*Mandatory prepayment – Net Sale Proceeds*)or paragraph (b) of Clause 11.7 (*Mandatoryprepayment – Insurance Proceeds*)) the Company shall ensure thatthose amounts are used for 

 

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that purpose and shall promptly deliver a certificateto the Agent at the time of such application and at the end of such periodconfirming the amount (if any) which has been so applied within the requisitetime periods provided for in the relevant 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 reasonable endeavours to fund theprepayment from other resources available to the Group, is unable to procurethe funding of such prepayment,

 

then, until such time as that the impediment toprepayment no longer applies, such prepayment shall be made in an amount equalto the aggregate of the amount the relevant Borrower is legally able to pay andthe amount the relevant Borrower is able to procure from other resourcesavailable 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 A Loans**

 

(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 B Utilisations**

 

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

 

(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 other than US Dollars),reduces the Base Currency Amount of the Facility B Utilisation by a minimumamount of €5,000,000 and integral multiples of €1,000,000 thereafter).

 

11.13             **Right of repayment and cancellation in relation to a singleLender, 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 Bank claimsindemnification from the Company under Clause 16.3 (*Taxindemnity*) or Clause 17 (*Increased costs*),

 

the Company may, whilst the circumstance givingrise to the requirement for gross-up or indemnification continues, give theAgent 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) of repayment of anyoutstanding Letter of Credit or Bank Guarantee issued by it and cancellation ofits appointment as an Issuing Bank under this Agreement in relation to anyLetters of Credit or Bank Guarantees to be issued in the future; or

 

(iii)                              (if such circumstances relate to an Ancillary Lender) of cancellation ofthat Ancillary Lender’s Ancillary Commitment and its intention to procure therepayment of the utilisations of any Ancillary Facility granted by thatAncillary 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 ofthat cancellation 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 or Bank Guarantee orsimilar instrument issued under an Ancillary Facility to the extent that theLetter of Credit or Bank Guarantee or other instrument supports actualoutstanding Financial Indebtedness of any member of the Group on a loan orcurrent 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**

** **

**COSTS OFUTILISATION**

 

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 it under aFinance Document on its due date, interest shall accrue on the overdue amountfrom the due date up to the date of actual payment (both before and afterjudgment) at a rate which, subject to paragraph (b) below, is the sum of 1per cent. and the rate which would have been payable if the overdue amount had,during the period of non-payment, constituted a Loan in the currency of theoverdue amount for successive Interest Periods, each of a duration selected bythe Agent (acting reasonably).  Anyinterest accruing under this Clause 12.3 shall be immediately payable by theObligor on demand by the Agent.

 

(b)        If any overdue amount consists of all or part of a Loan whichbecame due on a day which was not the last day of an Interest Period relatingto 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 amount during that firstInterest Period shall be the sum of 1 per cent. and the rate which would haveapplied if the overdue amount had not become due.

 
| (c)    | Default  interest (if unpaid) arising on an overdue amount will be compounded with the  overdue amount at the end of each Interest Period applicable to that overdue  amount but will remain immediately due and payable. |
|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   | ** **                                                                                                                                                                                                                |
| 12.4   | **Notification of rates of interest**                                                                                                                                                                                     |
|   |                                                                                                                                                                                                                      |
|   | The  Agent shall promptly notify the Lenders and the relevant Borrower of the  determination of a rate of interest under this Agreement.                                                                                  |
|   |                                                                                                                                                                                                                      |
| 12.5   | **Adjustment of Margin**                                                                                                                                                                                                  |
|   |                                                                                                                                                                                                                      |
| (a)    | Subject  to this Clause 12.5, the Margin applicable to each Utilisation shall be the  rate per annum specified in the definition of Margin set out in Clause 1.1 (*Definitions*)**adjusted by reference to                |

 

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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 one Month.

 

(d)                          Subject to this Clause 13, a Borrower (or the Company)may select an Interest Period of 1, 3 or 6 Months or any other period 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**

 

If anInterest Period would otherwise end on a day which is not a Business Day, thatInterest 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 of Facility 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 CurrencyAmounts specified in that Selection Notice, being an aggregate Base CurrencyAmount equal to the Base Currency Amount of the Facility A Loan immediatelybefore its division.

 

14.                        **CHANGES TO THE CALCULATION OFINTEREST**

 

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 the SpecifiedTime on the Quotation Day, the applicable LIBOR or EURIBOR shall be determinedon 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 soon as practicable and in any  event before interest is due to be paid in respect of that Interest Period,  to be that which |

 

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|   |                                                          | expresses  as a percentage rate per annum the cost to that Lender of funding its  participation in that Loan from whatever source it may reasonably select; and                                                                                                                                                                                                        |
|--------|---------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                          |                                                                                                                                                                                                                                                                                                                                                                   |
|   | (iii)                                                         | the  Mandatory Cost, if any, applicable to that Lender’s participation in the  Loan.                                                                                                                                                                                                                                                                              |
|   |                                                          |                                                                                                                                                                                                                                                                                                                                                                   |
| (b)    | In  this Agreement “Market Disruption Event” means: |
|   |                                                          |                                                                                                                                                                                                                                                                                                                                                                   |
|   | (i)                                                           | at  or about noon on the Quotation Day for the relevant Interest Period the  Screen Rate is not available and none or only one of the Reference Banks  supplies a rate to the Agent to determine LIBOR or, if applicable, EURIBOR  for the relevant currency and Interest Period; or                                                                                   |
|   |                                                          |                                                                                                                                                                                                                                                                                                                                                                   |
|   | (ii)                                                          | before  close of business in London on the Quotation Day for the relevant Interest  Period, the Agent receives notifications from a Lender or Lenders (whose  participations in a Loan exceed 35 per cent. of that Loan) that the cost to  it of obtaining matching deposits in the Relevant Interbank Market would be  in excess of LIBOR or, if applicable, EURIBOR. |

 

14.3                  **Alternative basis of interest or funding**

 

(a)                            If a Market Disruption Event occurs and the Agent 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’sAvailable Commitment for the applicable Availability Period.

 

(b)                           The accrued commitment fee is payable on the last dayof each successive period of three Months which ends during the relevant AvailabilityPeriod, on the last day of the Availability Period and, if cancelled in full,on the cancelled amount of the relevant Lender’s Commitment at the time thecancellation 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**                                                                                                                                                                                                                                                    |
|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                              |
|   | The  Company shall pay to the Agent (for its own account) an agency fee in the  amount and at the times agreed in a Fee Letter.                                                                                                                                   |
|   |                                                                                                                                                                                                                                                              |
| 15.4   | **Security Agency fee**                                                                                                                                                                                                                                           |
|   |                                                                                                                                                                                                                                                              |
|   | The  Company shall pay to the Security Agent (for its own account) a security  agency fee in the amount and at the times agreed in a Fee Letter.                                                                                                                  |
|   |                                                                                                                                                                                                                                                              |
| 15.5   | **Issuing Bank fee**                                                                                                                                                                                                                                              |
|   |                                                                                                                                                                                                                                                              |
|   | The  Company shall pay to the Issuing Bank (for its own account) a fee in the  amount and at the times agreed in a Fee Letter.                                                                                                                                    |
|   |                                                                                                                                                                                                                                                              |
| 15.6   | **Ancillary Facility fees**                                                                                                                                                                                                                                       |
|   |                                                                                                                                                                                                                                                              |
|   | The  Company or the relevant Borrower shall pay to the relevant Ancillary Lender  the Ancillary Facility fee(s), including the Ancillary Facility commitment  fee(s), in the amount(s) and at the times agreed in the relevant  Ancillary Facility Document. |

 

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**SECTION ****6**

** **

**ADDITIONALPAYMENT OBLIGATIONS**

 

16.                        **TAX GROSS UP AND INDEMNITIES**

 

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 taxation purposes yetentitled to receive all interest payments under the Finance Documents withoutdeduction or withholding of any Finnish income tax pursuant to section 9(2) ofthe Finnish Income Tax Act 1992/1535.

 

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

 

“**Protected Party**” means a Finance Party whichis or will be subject to any liability, or required to make any payment, for oron account of Tax in relation to a sum received or receivable (or any sumdeemed for the purposes of Tax to be received or receivable) under a FinanceDocument.

 

“**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 is beneficiallyentitled 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 Republic of Germany or thejurisdiction of incorporation of the relevant Borrower through a permanentestablishment with which that Lender’s participation in the Loan is effectivelyconnected.

 

“**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 Clause 16 areference to “determines” or “determined” means a determination made in theabsolute 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 Obligor making thepayment is able to demonstrate that the payment could have been made to theLender without the Tax Deduction had that Lender complied with its obligationsunder paragraph (g) below.

 

(e)                            If an Obligor is required to make a Tax Deduction,that Obligor shall make that Tax Deduction and any payment required in connectionwith that Tax Deduction within the time allowed and in the minimum amountrequired 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 taxpurposes;

 

(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)constitute the consideration for VAT purposes shall be deemed to be exclusiveof any VAT which is chargeable on such supply, and accordingly, subject toparagraph (c) below, if VAT is chargeable on any supply made by theFinance Party to any Party under a Finance Document, that Party shall pay tothe Finance Party (in addition to and at the same time as paying theconsideration) an amount equal to the amount of the VAT (and such Finance Partyshall promptly provide an appropriate VAT invoice 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 Agreementor disclose 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 (*Taxindemnity*) (or would have been compensated for under Clause 16.3 (*Tax indemnity*) but was not so compensatedsolely because any of the exclusions in paragraph (b) of Clause 16.3 (*Tax indemnity*) applied); or

 

(iii)                               compensated for by the payment of the Mandatory Cost; or

 

(iv)                              attributable to the wilful breach by the relevant Finance Party or itsAffiliates of any law or regulation.

 

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(b)        In this Clause 17.3, a reference to a “Tax Deduction” has thesame 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 shall procure that anObligor will), within three Business Days of demand, indemnify each FinanceParty against any cost, loss or liability incurred by that Finance Party as aresult of:

 
|   | (a)    | the  occurrence of any Event of Default;                                                                                                                                                                                                                                                                        |
|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                            |
|   | (b)    | a  failure by an Obligor to pay any amount due under a Finance Document on its  due date, including without limitation, any cost, loss or liability arising  as a result of Clause 32 (*Sharing among  the Finance Parties*);                                                                                   |
|   |   |                                                                                                                                                                                                                                                                                                            |
|   | (c)    | funding,  or making arrangements to fund, its participation in a Utilisation requested  by a Borrower in a Utilisation Request but not made by reason of the  operation of any one or more of the provisions of this Agreement (other than  by reason of default or negligence by that Finance Party alone); or |
|   |   |                                                                                                                                                                                                                                                                                                            |
|   | (d)    | a  Utilisation (or part of a Utilisation) not being prepaid in accordance with a  notice of prepayment given by a Borrower or the Company.                                                                                                                                                                      |

 

18.3                  **Indemnity to the Agent and the Security Agent**

 

The Company shall promptly indemnify the Agentand the Security Agent against any cost, loss or liability incurred by theAgent 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 promptly on demand pay theAgent, the Security Agent and the Arranger the amount of all costs and expenses(including legal fees) reasonably incurred by any of them in connection withthe negotiation, preparation, printing, execution and syndication 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, inconnection with or based on any actual or potential action, claim, suit,investigation or proceeding arising out of, in connection with or based on:

 

(i)                                      any Finance Document;

 

(ii)                                   the arranging, underwriting or syndication of 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 not recoverableon the basis of a guarantee, it will be liable to indemnify that Finance Partyagainst any cost, loss or liability it incurs as a result of a Borrower notpaying any amount when due under or in connection with any Finance Document.The amount payable by a Guarantor under this indemnity will not exceed theamount it would have had to pay under this Clause 21 if the amount claimed hadbeen 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**

 

If asa 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 of contribution**

 

If anyGuarantor (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 capital of 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 in accordance with GAAPconsistently applied by the German Guarantor in preparing its unconsolidatedbalance 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) above shall onlyapply 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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itselfand the relevant German Guarantor in accordance with the provisions ofparagraph (iii) above. In relation to the amount which is disputed,the Agent and such German Guarantor shall instruct a firm of auditors ofinternational standing and reputation to determine within 45 calendar days(or such longer period as has been agreed between the Company and the Agent)from the date the Agent has contested the Management Determination the value ofavailable Net Assets (the “**Auditor’sDetermination**”). If the Agent and the German Guarantor do not agreeon the appointment of a joint auditor within 5 Business Days from the date theAgent has disputed the Management Determination, the Agent shall be entitled toappoint auditors of international standing and reputation. The amountdetermined as available in the Auditor’s Determination shall be (except formanifest error) binding for all Parties. The costs of the Auditor’sDetermination shall be borne by the Company and shall be taken into account inthe 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 that the enforcement ofthe Guarantee has led to one of the effects referred to in sub-paragraph (i) above,then the German Guarantor shall realise at market value any and all of itsassets that are shown in its balance sheet with a book value (*Buchwert*) which are (in the reasonableopinion of the Agent) significantly lower than their market value and to theextent that such assets are not necessary for the relevant German Guarantor’sbusiness (*nicht betriebsnotwendig*),to the extent necessary to satisfy the amounts demanded under thisparagraph 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 time of enforcement,it is obliged to file for the commencement of insolvency proceedings for reasonof 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 inrelation to the German Guarantor invoking its over-indebtedness (*Überschuldung*).

 

(c)         This Clause 21.10 (*Preservation ofstated 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            **Limitationapplicable to Finnish Guarantors**

 

No obligations of any Guarantor incorporated inFinland under this Clause 21 shall extend to guarantee the obligations of anyBorrower to the extent, and only to the extent, it would constitute (i) unlawfuldistribution of assets within the meaning of Chapter 13, Section 1 of theFinnish Companies Act (*osakeyhtiölaki624/2006*, as amended or re-enacted from time to time), or (ii) unlawfulfinancial assistance within the meaning of Chapter 13, Section 10 of theFinnish Companies Act.

 

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**SECTION ****8**

 

**REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT**

 

22.                        **REPRESENTATIONS**

 

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

 

22.1                  **Status**

 

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

 

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

 

22.2                  **Bindingobligations**

 

The obligationsexpressed to be assumed by it in each Finance Document are legal, valid,binding and enforceable, subject to the Legal Reservations and the PerfectionRequirements.

 

22.3                  **Non-conflictwith 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’ constitutional documents; or

 

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

 

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

 

22.4                  **Powerand authority**

 

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

 

22.5                  **Validityand admissibility in evidence**

 

All Authorisationsrequired:

 

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

 

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

 

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

 

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have been obtained or effected and are in full forceand effect or will be obtained or effected and will be in full force and effectno later than the date of first utilisation of any Facility.

 

22.6                  **Governinglaw and enforcement**

 

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

 

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

 

22.7                  **Deductionof Tax**

 

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

 

22.8                  **Nofiling or stamp taxes**

 

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

 

22.9                  **Nodefault**

 

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

 

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

 

22.10            **InformationMemorandum**

 

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

 

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

 

(c)                            Nothing has occurred or been omitted from the Information Memorandum andno information has been given or withheld that results in the informationcontained in the Information Memorandum being untrue or misleading in anymaterial respect.

 

22.11            **Financialstatements**

 

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

 

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

 

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

 

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22.12            **Paripassu ranking**

 

Without limiting Clause 21.17 (*Security*) below, its payment obligationsunder the Finance Documents rank at least pari passu with the claims of all itsother unsecured and unsubordinated creditors, except for obligationsmandatorily preferred by law applying to companies generally.

 

22.13            **Noproceedings pending or threatened**

 

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

 

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

 

22.14            **Environmentallaws and licences**

 

It and each of itsSubsidiaries has:

 

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

 

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

 

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

 

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

 

22.15            **Environmentalreleases**

 

No:

 

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

 

(b)                                  discharge, release, leaching, migration or escape of any HazardousSubstance into the Environment has occurred or is occurring on, under or fromthat property,

 

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

 

22.16            **Solvency**

 

No:

 

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

 

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

 

has been started in respect of it or any of itsSubsidiaries.

 

22.17            **Security**

 

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

 

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

 

22.18            **Legaland beneficial ownership**

 

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

 

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

 

22.19            **Assets**

 

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

 

22.20            **JVDocuments**

 

(a)                            The JV Documents:

 
| (i)    |   | contain all the terms of the arrangements between  the Owners relating to the Ti02 Joint Venture (and/or any of their respective  Affiliates) and any Holding Company of the Company and/or any member of the  Group (and/or any of their respective Affiliates);                   |
|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                |
| (ii)   |   | are or, on the date of the first Utilisation  Request, will be in full force and effect; and                                                                                                                                                                                        |
|   |   |                                                                                                                                                                                                                                                                                |
| (iii)  |   | have not been amended from the form in which they  were delivered or waived (in whole or in part) and no consent has been given  thereunder, save for any which do not materially and adversely affect the  interests of the Lenders or have been approved in writing by the Agent. |

 

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

 

22.21            **Pensions**

 

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

 

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

 

22.22            **Insurances**

 

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

 

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

 

22.23            **Repetition**

 

The Repeating Representations (and, in the case ofparagraph (b) below, the representations set out in Clauses 22.5 (*Validity and admissibility in evidence*)and 22.8 (*No filing or stamp taxes*))are deemed to be made by each Obligor by reference to the facts andcircumstances then existing on:

 

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

 

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

 

The representations and warranties set out in Clause22.10 (*Information Memorandum*)are deemed to be made by each Obligor on the date on which the InformationMemorandum is approved by the Company and on the Syndication Date subject to,in each case, any disclosures made by the Company prior thereto.

 

23.                        **INFORMATION UNDERTAKINGS**

 

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

 

23.1                  **Financialstatements**

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

23.2                  **ComplianceCertificate**

 

(a)                            The Company shall supply to the Agent, with each set of financialstatements delivered pursuant to paragraph (a)(i) or (b)(i) of Clause23.1 (*Financial statements*), aCompliance 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 financial statements deliveredpursuant to paragraph (a)(i) of Clause 23.1 (*Financial statements*), the Compliance Certificate shall alsoset out the Material 

 

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

 

(c)         Each Compliance Certificate shall be signed by two directors of theCompany and, if required to be delivered with the financial statementsdelivered 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                  **Requirementsas to financial statements**

 

(a)        Each set of financial statements delivered by the Company pursuant toClause 23.1 (*Financial statements*)shall be certified by a director of the relevant company as fairly representingits (or, as the case may be, its consolidated) financial condition andoperations as at the end of and for the period in relation to which thosefinancial statements were drawn up.

 

(b)        The Company shall procure that each set of financial statementsdelivered 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 relevant financialstatements to reflect the Applicable Accounting Principles; and

 

(ii)                                   sufficient information, in form and substance as may be reasonablyrequired 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 this Agreementand/or to make an accurate comparison between the financial position indicatedin those financial statements and that Obligor’s Original Financial Statements.

 

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

 

(c)                            If the Company notifies the Agent of a change in accordance withparagraph (b) above, the Company and the Agent shall enter intonegotiations 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 shallsupply to the Agent (in sufficient copies for all the Lenders, if the Agent sorequests):

 

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

 

(b)                                  promptly upon becoming aware of them, the details of any litigation,arbitration or administrative proceedings which are current, threatened orpending against any member of the Group, and which might, if adverselydetermined, reasonably be expected to have a Material Adverse Effect (otherthan any litigation, arbitration or administrative proceedings which arevexatious or frivolous); and

 

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

 

23.5                  **Notificationof default**

 

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

 

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

 

23.6                  **“Knowyour customer” checks**

 

(a)                            If:

 
| (i)    |   | the introduction of or any change in (or in the  interpretation, administration or application of) any law or regulation made  after the date of this Agreement;                |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                            |
| (ii)   |   | any change in the status of an Obligor after the  date of this Agreement; or                                                                                                    |
|   |   |                                                                                                                                                                            |
| (iii)  |   | a proposed assignment or transfer by a Lender of any  of its rights and obligations under this Agreement to a party that is not a  Lender prior to such assignment or transfer, |

 

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

 

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

 

(c)                           The Company shall, by not less than 10 Business Days’ prior writtennotice to the Agent, notify the Agent (which shall promptly notify the Lenders)of its intention to request that one of its Subsidiaries becomes an AdditionalObligor pursuant to Clause 28 (*Changes tothe Obligors*).

 

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

 

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available to it, the Company shall promptly upon therequest of the Agent or any Lender supply, or procure the supply of, suchdocumentation and other evidence as is reasonably requested by the Agent (foritself or on behalf of any Lender) or any Lender (for itself or on behalf ofany 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                  **Financialcondition**

 

The Company shallensure that:

 

(a)                                   the ratio of Net Debt on each Quarter Date in each period set out in thetable below to EBITDA for the Relevant Period ending on that Quarter Date willnot exceed the ratio set out in the relevant column in the table below oppositethat period;

 

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

 

(c)                                   the ratio of Cash Generated for Financing to Debt Service 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.

 
| **Period**                                                     | ** ** | **Net  Debt: EBITDA** | ** ** | **EBITDA:  Net Interest   Costs** | ** ** | **Cash  Generated for   Financing: Debt   Service** |
|----------------------------------------------------------------|------------|-----------------------|------------|-----------------------------------|------------|-----------------------------------------------------|
| 30  September 2008 to and including 31 December 2008 |       | 4.00:1.00             |       |                              |       |                                                |
| 31 December 2008                                          |       |                  |       | 2.75:1.00                         |       | 1.00:1.00                                           |
| 1 January 2009  to and including 31 December 2009    |       | 4.00:1.00             |       | 3.00:1.00                         |       | 1.00:1.00                                           |
| 1 January 2010  to and including 31 December 2010    |       | 3.50:1.00             |       | 3.50:1.00                         |       | 1.10:1.00                                           |
| Thereafter                                                     |       | 3.00:1.00             |       | 4.00:1.00                         |       | 1.10:1.00                                           |

 

24.2                  **Definitions**

 

In this Clause 24.2:

 

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

 

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expenditure (and including the capital element of anyexpenditure or obligation incurred in connection with a Finance Lease).

 

“**Cash Generated forFinancing**” means, in respect of any Relevant Period (the “**Current Relevant Period**”), EBITDA for thatRelevant Period after:

 

(a)                                   adding the amount of any decrease (and deducting the amount of anyincrease) in Working Capital for that Relevant Period;

 

(b)                                  adding the amount of any cash receipts (and deducting the amount of anycash payments) during that Relevant Period in respect of any Exceptional Itemsnot already taken account of in calculating EBITDA for any Relevant Period(other than, in the case of cash receipts, Net Sale Proceeds or InsuranceProceeds applied in prepayment of the Facilities);

 

(c)                                   adding the amount of any cash receipts during that Relevant Period inrespect of any Tax rebates or credits and deducting the amount actually paid ordue and payable in respect of Taxes during that Relevant Period by any memberof the Group;

 

(d)                                  adding (to the extent not already taken into account in determiningEBITDA) the amount of any dividends or other profit distributions received incash by any member of the Group during that Relevant Period from any entitywhich is itself not a member of the Group and deducting (to the extent notalready deducted in determining EBITDA) the amount of any dividends paid incash during the Relevant Period to minority shareholders in members of theGroup;

 

(e)                                   adding the amount of any increase in provisions, other non-cash debitsand other non-cash charges (which are not Current Assets or CurrentLiabilities) and deducting the amount of any non-cash credits (which are notCurrent Assets or Current Liabilities) in each case to the extent taken intoaccount in establishing EBITDA;

 

(f)                                     deducting the amount of any Capital Expenditure actually made (or due tobe made) during that Relevant Period by any member of the Group and theaggregate of any cash consideration paid for, or the cash cost of, any  Permitted Acquisitions and Permitted JointVentures except (in the case) to the extent funded from;

 
| (i)    |   | Cash Generated for Financing in the Relevant Period  ending immediately prior to the first day of the Current Relevant Period (the  “**Previous Relevant Period**”) less  Debt Service for the Previous Relevant Period; |
|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                               |
| (ii)   |   | Net Sale Proceeds or Insurance Proceeds permitted to  be retained for this purpose; or                                                                                                                                             |
|   |   |                                                                                                                                                                                                                               |
| (iii)  |   | new equity or Financial Indebtedness subordinated to  the Facilities on terms acceptable to the Majority Lenders (acting  reasonably) and received from a person which is not a member of the Group;  and                          |

 

(g)                                  deducting the amount of any cash costs of Pension Items during thatRelevant Period to the extent not taken into account in establishing EBITDA,

 

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and so that no amount shall be added (ordeducted) more than once and there shall be excluded the effect of all cashmovements associated with the JV Costs up to an amount not exceeding€8,000,000.

 

“**CurrentAssets**” means the aggregate (on a consolidated basis) of allinventory, work in progress, trade and other receivables of each member of theGroup including prepayments in relation to operating items and sundry debtors(but excluding Cash and Cash Equivalent Investments) maturing within twelvemonths 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.

 

“**CurrentLiabilities**” means the aggregate (on a consolidated basis) of allliabilities (including trade creditors, accruals and provisions) of each memberof the Group falling due within twelve months from the date of computation but **excluding** amounts in respect of:

 

(a)                                 liabilities for Debt, other Financial Indebtedness or pensions andInterest Expenses;

 

(b)                                liabilities for Tax;

 

(c)                                 Exceptional Items and other non-operating items; and

 

(d)                                insurance claims.

 

“**Debt**”means, at any time, the aggregate outstanding principal, capital or nominalamount (and any fixed or minimum premium payable on prepayment (to the extentthe relevant member of the Group has taken action that will result in suchpremium being required to be paid) or redemption) of Financial Indebtedness ofmembers of the Group but excluding:

 

(a)                                 any indebtedness referred to in paragraphs (f), (g) or (i) ofthe definition of Financial Indebtedness (provided that, in relation toparagraphs (f) and (i) of such definition, only to the extent suchindebtedness is not classified as borrowings under IFRS);

 

(b)                                any guarantee in respect of Financial Indebtedness to the extent suchguarantee is not classified as a borrowing under IFRS; and

 

(c)                                 any Financial Indebtedness subordinated to the Facilities under theSubordination Agreement or otherwise on terms acceptable to the MajorityLenders (acting reasonably) including, without limitation, any subordinatedshareholder loans.

 

“**Debt Service**”means, in respect of any Relevant Period, the aggregate of:

 

(a)                                 Interest Expenses for that Relevant Period;

 

(b)                                the aggregate of all scheduled repayments of Debt falling due duringthat Relevant Period  but excluding:

 

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(i)                                 any amounts falling due under any overdraft or revolving facility(including, without limitation, Facility B and any Ancillary Facility) andwhich were available for simultaneous redrawing according to the terms of thatfacility;

 

(ii)                              any such obligations owed to any member of the Group; and

 

(iii)                           any prepayment of Debt existing on the date of this Agreement which isrequired to be repaid under the terms of this Agreement; and

 

(c)                                 the amount of the capital element of any payments in respect of thatRelevant Period payable under any Finance Lease entered into by any member ofthe Group,

 

and so that no amount shall be included morethan once.

 

“**EBITDA**”means, in respect of any Relevant Period, the consolidated operating profit ofthe Group before taxation (excluding the results from discontinued operations):

 

(a)                                 **before deducting** any Net Interest Expenses and other finance charges in respect ofFinancial Indebtedness;

 

(b)                                **not including** any accrued interest owing to any member of the Group;

 

(c)                                 **before taking** into account any Exceptional Items (and after adding the amount of anyprofit which would have been generated by Kemira Pigments in that RelevantPeriod but for the strikes that occurred in that Relevant Period, in each caseas referred to in the KPMG Supplementary Report);

 

(d)                                **before deducting** JV Costs up to an amount not exceeding €8,000,000 (for the avoidance ofdoubt, JV Costs exceeding €8,000,000 shall be deducted to the extent otherwiserequired to be deducted pursuant to the terms of this Agreement);

 

(e)                                 **after deducting** the amount of any profit (or adding back the amount of any loss) of anymember of the Group which is attributable to minority interests;

 

(f)                                   plus or minus the Group’s share of the profits or losses (after financecosts and tax) of Non-Group Entities (**afterdeducting** the amount of any profit of any Non-Group Entity to theextent that the amount of the profit included in the financial statements ofthe Group exceeds the amount actually received in cash by members of the Groupthrough 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 impairmentof assets of members of the Group (and taking no account of the reversal of anyprevious impairment charge made in that Relevant Period); and

 

(k)                                 **after adding back**, to the extent deducted, any non-recurring fees, expenses or chargespaid in relation to (A) any restructuring, provided that it has a futureidentifiable 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,

 

in each case, to the extent added, deducted ortaken into account, as the case may be, for the purposes of determiningoperating profits of the Group before taxation.

 

“**ExceptionalItems**” means any exceptional, one off, non-recurring orextraordinary items (including without limitation any lay-off and otherrestructuring costs and any additional pension costs relating thereto, in eachcase incurred by Kemira Pigments and as referred to in the KPMG SupplementaryReport).

 

“**FinancialYear**” means the annual accounting period of the Group.

 

“**InterestExpenses**” means, for any Relevant Period, the aggregate amount ofthe accrued interest, commission, fees, discounts, prepayment fees, premiums orcharges and other finance payments in respect of Debt (including, for theavoidance of doubt, any Financial Indebtedness subordinated to the Facilities)whether paid or payable (unless capitalised or included pursuant to paragraph (d) below)by any member of the Group (calculated on a consolidated basis) in respect ofthat Relevant Period:

 

(a)                                 **including** any upfront fees or costs which are not capitalised;

 

(b)                                **including**the interest (but not the capital) element of payments in respect ofFinance Leases;

 

(c)                                 **including** any commission, fees, discounts and other finance payments payable by(and deducting any such amounts payable to) any member of the Group under anyinterest rate hedging arrangement;

 

(d)                                **including** the amortisation of any capitalised finance payments; and

 

(e)                                 taking no account of any unrealised gains or losses on any derivativeinstruments,

 

and so that no amount shall be added (ordeducted) more than once.

 

“**Net Debt**”means, at any time, the aggregate amount of all obligations of members of theGroup for or in respect of Debt at that time but:

 

(a)                                 **excluding**any such obligations to any other member of the Group;

 

(b)                                including, in the case of Finance Leases only, their capitalised value;and

 

(c)                                 **deducting** the aggregate amount of Cash and Cash Equivalent Investments held byany member of the Group at that time,

 

and so that no amount shall be included orexcluded more than once.

 

“**Net InterestExpenses**” means, for any Relevant Period, the Interest Expenses forthat Relevant Period after **deducting**any interest or any other financial income payable in that Relevant Period toany member of the Group on any Cash or Cash Equivalent Investment.

 

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“**Non-GroupEntity**” means any investment or entity (which is not itself a memberof the Group (including associates and Joint Ventures)) in which any member ofthe Group has an ownership interest.

 

“**PensionItems**” means any income or charge attributable to a post-employmentbenefit scheme other than the current service costs and any past service costsand curtailments and settlements attributable to the scheme.

 

“**WorkingCapital**” means, on any date, Current Assets less CurrentLiabilities.

 

24.3                   **Financial covenant calculations**

 

(a)                                 Capital Expenditure, Cash Generated for Financing, Current Assets,Current Liabilities, Debt, Debt Service, EBITDA, Exceptional Items, InterestExpenses, Net Interest Expenses, Net Debt and Working Capital shall becalculated and interpreted on a consolidated basis in accordance with theApplicable Accounting Principles, unless expressly provided to the contrary,and shall be expressed in euro.

 

(b)                                Capital Expenditure, Cash Generated for Financing, EBITDA, InterestExpenses, Net Interest Expenses, Net Debt and Working Capital shall bedetermined (except as needed to reflect the terms of this Clause 24) from thefinancial statements of the Group and Compliance Certificates delivered underClause 23.1 (*Financial statements*), and Clause23.2 (*Compliance Certificate*).

 

(c)                                 For the purpose of this Clause 24, an amount outstanding or repayable ona particular day in a currency other than euro shall on that day be taken intoaccount in its euro equivalent at the rate of exchange that would have beenused had an audited consolidated balance sheet of the Group been prepared as atthat day in accordance with the Applicable Accounting Principles.

 

(d)                                For the purpose of this Clause 24, no item shall be included or excludedmore than once in any calculation.

 

(e)                                 To the extent that any period prior to the date of first Utilisation ofany Facility is included in any Relevant Period in Clause 24.1 (*Financial condition*):

 

(i)                                 Net Interest Expenses for the period from the beginning of the RelevantPeriod until the date of first Utilisation of any Facility shall be calculatedon a pro forma basis on the basis of the actual Net Interest Expenses from thedate of first Utilisation of any Facility until the end of the Relevant Period;and

 

(ii)                              EBITDA for the period from the beginning of the Relevant Period untilthe date of first Utilisation of any Facility shall be the actual earningsbefore interest, tax, depreciation and amortisation calculated using the sameprinciples set out in this Clause 24 for the calculation of EBITDA.

 

(f)                                   The Company shall provide the Agent with the financial information andpro forma computations necessary to calculate these items.

 

(g)                                If any Permitted Acquisition occurs during a Relevant Period in relationto a business or company and the underlying business or company is notsubsequently disposed of 

 

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during that Relevant Period (an “**Acquired Entity**”), the Acquired Entity’s earnings beforeinterest, tax, depreciation and amortisation and cash generated for financing(calculated using the principles set out in this Clause 24 for the calculationof EBITDA and Cash Generated for Financing, respectively) in respect of thepart of the Relevant Period before its acquisition shall be included indetermining EBITDA and Cash Generated for Financing for that Relevant Period.

 

(h)                                If any Permitted Disposal occurs during a Relevant Period in relation toa business or company (a “**Sold Entity**”),the Sold Entity’s earnings before interest, tax, depreciation and amortisationand cash generated for financing (calculated using the principles set out inthis Clause 24 for the calculation of EBITDA and Cash Generated for Financing,respectively) in respect of the part of the Relevant Period before its disposalshall be excluded in determining EBITDA and Cash Generated for Financing forthat Relevant Period.

 

(i)                                    Net Interest Expenses and Debt Service shall be adjusted to reflect theassumption of debt relating to any Acquired Entity or repayment of debtrelating to any Sold Entity.

 

25.                         **GENERAL UNDERTAKINGS**

 

The undertakings in thisClause 25 remain in force from the date of this Agreement for so long as anyamount is outstanding under the Finance Documents or any Commitment is inforce.

 

25.1                   **Authorisations**

 

(a)                          Each Obligor shall promptly:

 

(i)                                    obtain, comply with and do all that is necessary to maintain in fullforce and effect; and

 

(ii)                                 on request by the Agent, supply certified copies to the Agent of,

 

any Authorisation required under any law orregulation of its jurisdiction of incorporation to enable it to perform itsobligations under the Finance Documents and to ensure, subject to the LegalReservations, the legality, validity, enforceability or admissibility inevidence in its jurisdiction of incorporation of any Finance Document.

 

25.2                   **Compliance with laws**

 

Each Obligor shall comply in all respects withall laws to which it is subject, if failure so to comply would be reasonablyexpected to have a Material Adverse Effect.

 

25.3                   **Negative pledge**

 

(a)                          No Obligor shall (and the Company shall ensure that no other member ofthe Group will) create or permit to subsist any Security or Quasi Security overany of its assets.

 

(b)                         Paragraph(a) does not apply to any Security or Quasi Security which is PermittedSecurity.

 

25.4                   **Disposals**

 

(a)                          No Obligor shall (and the Company shall ensure that no other member ofthe Group will) enter into a single transaction or a series of transactions(whether related or not and whether voluntary or involuntary) to sell, lease,transfer or otherwise dispose of any asset.

 

(b)                         Paragraph(a) above does not apply to any sale, lease, transfer or other disposalwhich is a Permitted Disposal or a Permitted Transaction.

 

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25.5                   **Merger**

 

No Obligor shall (and the Company shall ensurethat no other member of the Group will) enter into any amalgamation, demerger,merger or corporate reconstruction without the prior written consent of theMajority Lenders other than a Permitted Transaction.

 

25.6                   **Change of business**

 

The Company shall procure that no substantialchange is made to the general nature of the business of the Group taken as awhole from that carried on at the date of this Agreement.

 

25.7                   **Insurance**

 

Each Obligor shall (and the Company shallensure that each other member of the Group will) maintain insurances on and inrelation to its business and assets with reputable underwriters or insurancecompanies against those risks, and to the extent, usually insured against byprudent companies located in the same or a similar location and carrying on asimilar 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 is subject;

 

(b)                                obtain all Environmental Licences required in connection with itsbusiness; and

 

(c)                                 comply with the terms of all those Environmental Licences,

 

in each case where failure to do has or is reasonablylikely to have a Material Adverse Effect.

 

25.9                   **Environmental claims**

 

Each Obligor shall (and the Company shallensure that each other member of the Group will) promptly notify the Agent ofany claim, notice or other communication received by it in respect of anyactual or alleged breach of or liability under Environmental Law which, ifsubstantiated, has or is reasonably likely to have a Material Adverse Effect.

 

25.10             **Assets**

 

Each Obligor shall (and the Company shallensure that each other member of the Group will) maintain in good working orderand condition (ordinary wear and tear excepted) all its assets necessary forthe conduct of its business as conducted from time to time.

 

25.11             **Pari passu**

 

Each Obligor shall ensure that its obligationsunder the Finance Documents rank at all times at least *pari passu* in right of priority andpayment with the claims of all its other unsecured and unsubordinatedcreditors, except for obligations mandatorily preferred by law applying tocompanies generally.

 

25.12             **Loans or credit**

 

(a)                          No Obligor shall (and the Company shall ensure that no other member ofthe Group will) be a creditor in respect of any Financial Indebtedness.

 

(b)                         Paragraph(a) above does not apply to a Permitted Loan or a Permitted Transaction.

 

25.13             **Guarantees**

 

(a)                          No Obligor shall (and the Company shall ensure that no other member ofthe Group will) issue or allow to remain outstanding any guarantee in respectof any liability or obligation of any person.

 

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| (b)    | Paragraph  (a) above does not apply to a Permitted Guarantee.                                                                                                                                                                                                                                                                                                |
|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                                                                                              |
| 25.14  | **Financial Indebtedness**                                                                                                                                                                                                                                                                                                                                        |
|   |                                                                                                                                                                                                                                                                                                                                                              |
| (a)    | No  Obligor shall (and the Company shall ensure that no other member of the Group  will) incur (or agree to incur) or allow to remain outstanding any Financial  Indebtedness.                                                                                                                                                                                    |
|   |                                                                                                                                                                                                                                                                                                                                                              |
| (b)    | Paragraph  (a) above does not apply to Financial Indebtedness that is Permitted  Financial Indebtedness or a Permitted Transaction.                                                                                                                                                                                                                          |
|   |                                                                                                                                                                                                                                                                                                                                                              |
| 25.15  | **Restricted payments**                                                                                                                                                                                                                                                                                                                                           |
|   |                                                                                                                                                                                                                                                                                                                                                              |
|   | The  Company shall not:                                                                                                                                                                                                                                                                                                                                           |
|   |                                                                                                                                                                                                                                                                                                                                                              |
|   | (i)                                                                                                                                                                                                                                                                                                                                                               | declare,  pay or make any dividend or other payment or distribution of any kind on or  in respect of any of its shares; or |
|   |                                                                                                                                                                                                                                                                                                                                                              |   |
|   | (ii)                                                                                                                                                                                                                                                                                                                                                              | reduce,  return, purchase, repay, cancel or redeem any of its shares, |
|   |                                                                                                                                                                                                                                                                                                                                                              |
|   | provided  that the Company may take such action at any time when the ratio of Net Debt  on the most recent Quarter Date to EBITDA for the Relevant Period ending on  that Quarter Date is less than or equal to 2.50:1.00 and that immediately  after any such action is taken, such ratio will be less than or equal to  2.50:1.00.                              |
|   |                                                                                                                                                                                                                                                                                                                                                              |
| 25.16  | **Acquisitions**                                                                                                                                                                                                                                                                                                                                                  |
|   |                                                                                                                                                                                                                                                                                                                                                              |
| (a)    | No  Obligor shall (and the Company shall ensure that no other member of the Group  will):                                                                                                                                                                                                                                                                         |
|   |                                                                                                                                                                                                                                                                                                                                                              |
|   | (i)                                                                                                                                                                                                                                                                                                                                                               | acquire  any share in, or any security issued by, any person, or any interest therein  (or agree to do any of the foregoing); or |
|   |                                                                                                                                                                                                                                                                                                                                                              |   |
|   | (ii)                                                                                                                                                                                                                                                                                                                                                              | acquire  any business or going concern, or the whole or substantially the whole of the  assets or business of any person, or any assets that constitute a division or  operating unit of the business of any person (or agree to do any of the  foregoing). |
|   |                                                                                                                                                                                                                                                                                                                                                              |
| (b)    | Paragraph  (a) above does not apply to any acquisition or investment which is a  Permitted Acquisition or a Permitted Transaction.                                                                                                                                                                                                                           |
|   |                                                                                                                                                                                                                                                                                                                                                              |
| 25.17  | **Arm’s length terms**                                                                                                                                                                                                                                                                                                                                       |
|   |                                                                                                                                                                                                                                                                                                                                                              |
| (a)    | No  Obligor shall (and the Company shall ensure that no other member of the Group  will) enter into any contract or arrangement with or for the benefit of any  other person which is not a member of the Group (including any disposal to  that person) other than in the ordinary course of business and on arm’s  length terms or better.                 |
|   |                                                                                                                                                                                                                                                                                                                                                              |
| (b)    | Paragraph  (a) above does not apply to:                                                                                                                                                                                                                                                                                                                      |
|   |                                                                                                                                                                                                                                                                                                                                                              |
|   | (i)                                                                                                                                                                                                                                                                                                                                                               | any  JV Costs up to an aggregate amount of £8,000,000; and |
|   |                                                                                                                                                                                                                                                                                                                                                              |   |
|   | (ii)                                                                                                                                                                                                                                                                                                                                                              | a  Permitted Transaction. |
|   |                                                                                                                                                                                                                                                                                                                                                              |
| (c)    | The  Company shall ensure that no member of the Group which is not an Obligor  shall enter into any contract or arrangement regarding a sale, lease,  transfer or other disposal or a loan, credit or other arrangement having a  similar effect with or for the benefit of any Obligor on terms less  advantageous to that Obligor than arm’s length terms. |

 

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25.18             **Hedging**

 

(a)                          The Company shall ensure that the hedging required by the Hedging Letteris effected within 90 days after the date of first utilisation of any Facility(and is maintained in effect) in accordance with the terms of the HedgingLetter.

 

(b)                         NoObligor shall (and the Company shall ensure that no other member of the Groupwill) enter (or agree to enter) into any derivative transaction.

 

(c)                          Paragraph (b) above does not apply to any derivative transaction whichis a Permitted Hedging Transaction.

 

25.19             **Pensions**

 

The Company shall ensure that all pensionschemes maintained or operated by, or for the benefit of, any member of theGroup and/or any of its employees:

 

(i)                                    are maintained and operated in all material respects in accordance withall applicable laws and contracts and their governing provisions; and

 

(ii)                                 are funded substantially in accordance with the governing provisions ofthe scheme with any funding shortfall advised by actuaries of recognised standingbeing rectified in accordance with those governing provisions.

 

25.20             **Taxes**

 

(a)                          Each Obligor shall (and the Company shall ensure that each other memberof the Group will) pay all material Taxes required to be paid by it within thetime period allowed for payment without incurring any material penalties fornon-payment.

 

(b)                         Paragraph(a) above does not apply to any Taxes:

 

(i)                                    being contested by the relevant member of the Group in good faith and inaccordance with the relevant procedures;

 

(ii)                                 for which adequate reserves are being maintained in accordance with, andto the extent required by, GAAP; and

 

(iii)                              where payment can be lawfully withheld and will not result in theimposition of any penalty nor in any Security ranking in priority to the claimsof any Finance Party under any Finance Document or to any Security createdunder any Security Document.

 

(c)                          No member of the Group may change its residence for Tax purposes.

 

25.21             **Joint Ventures**

 

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

 

(i)                                    invest in or acquire (or agree to invest in or acquire) any share in, orany security issued by, any Joint Venture or any interest therein; or

 

(ii)                                 transfer any assets, or lend, to or give a guarantee, Security or Quasi Securityfor, or otherwise underwrite, the obligations of, or incur any other liability(whether actual or contingent and whether present or future) in respect of, aJoint Venture (or agree to do any of the foregoing).

 

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(b)                         Paragraph(a) above does not apply to any acquisition of or investment in, ortransfer or loan to, or guarantee, Security or Quasi Security for theobligations of, or any other liability in respect of, the Ti02 Joint Venture ora Permitted Joint Venture.

 

25.22             **Guarantees and Security**

 

(a)                          The Company shall:

 
| (i) | within  30 days of a member of the Group becoming a Material Subsidiary, ensure that  the relevant member of the Group becomes an Additional Guarantor in  accordance with Clause 28 (*Changes to  the Obligors*). |
|-----|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

(b)                         TheCompany need only perform its obligations under paragraph (a) above if itis not unlawful for the relevant person to become a Guarantor and that personbecoming a Guarantor would not result in personal liability for that person’sdirectors or other management. Each Obligor must use, and must procure that therelevant person uses, all reasonable endeavours lawfully available to avoid anysuch unlawfulness or personal liability. This includes agreeing to a limit onthe amount guaranteed. The Agent may (but shall not be obliged to) agree tosuch a limit if, in its opinion, to do so would avoid the relevant unlawfulnessor personal liability.

 

(c)                          Each Obligor shall (and the Company shall ensure that each other memberof the Group will), at its own expense, promptly take all such action as theAgent or the Security Agent may require:

 

(i)                                    for the purpose of perfecting or protecting any of the Finance Parties’rights under, and preserving the Security intended to be created or evidencedby, any of the Finance Documents; and

 

(ii)                                 for the purpose of facilitating the realisation of any of that Security,

 

including the execution of any transfer,conveyance, assignment or assurance of any asset and the giving of any notice,order or direction and the making of any registration which the Agent or theSecurity Agent may reasonably require.

 

(d)                         TheCompany shall ensure that at all times:

 

(i)                                    the aggregate of the unconsolidated net assets (excluding any intragrouploans) of the Guarantors (without double counting and excluding any interestsin any Subsidiaries which are Guarantors) exceeds 80 per cent. of theconsolidated net assets of the Group; and

 

(ii)                                 the aggregate of the unconsolidated revenues or EBITDA of the Guarantors(without double counting and excluding any dividends or other distributionsfrom Subsidiaries which are Guarantors) exceeds 80 per cent. of theconsolidated revenues or EBITDA of the Group,

 

in each case calculated by reference to thethen most recent annual and quarterly unaudited unconsolidated financialstatements of each Guarantor and the then most recent annual and quarterlyaudited consolidated financial statements of the Group.

 

25.23             **Issue of shares**

 

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

 

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(i)                                    issue any share to any person; or

 

(ii)                                 grant to any person any conditional or unconditional option, warrant orother right to call for the issue or allotment of, subscribe for, purchase orotherwise acquire any share of any member of the Group (including any right ofpre-emption, conversion or exchange), or alter any right attaching to any sharecapital of any member of the Group.

 

(b)                         Paragraph(a) above does not apply to:

 

(i)                                    any issue of shares by a member of the Group to its immediate holdingcompany; and

 

(ii)                                 any issue of shares by a member of the Group which is not wholly-owned,if such shares are issued pro rata to its shareholders.

 

26.                         **EVENTS OF DEFAULT**

 

Each of the events orcircumstances set out in Clause 26 is an Event of Default (save for Clause26.16 (*Acceleration*).

 

26.1                   **Non-payment**

 

An Obligor does not pay on the due date anyamount payable pursuant to a Finance Document at the place at and in thecurrency in which it is expressed to be payable unless:

 

(a)                                 its failure to pay is caused by:

 

(i)                                 administrative or technical error; or

 

(ii)                              a Disruption Event; and

 

(b)                                payment is made within 3 Business Days of its due date.

 

26.2                   **Financial covenants**

 

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

 

26.3                   **Other obligations**

 

(a)                          Any person (other than a Finance Party) does not comply with Clauses25.4 (*Disposals*), 25.5 (*Merger*), 25.14 (*Financial Indebtedness*), 25.16 (*Acquisitions*), 25.21 (*Jointventures*) and 25.22 (*Guaranteesand Security*) (other than paragraph (c) thereof).

 

(b)                         AnObligor does not comply with any provision of the Finance Documents (other thanthose 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 ofremedy and is remedied within 20 Business Days of the earlier of the Agentgiving notice to the Company or the Company becoming aware of the failure tocomply.

 

26.4                   **Misrepresentation**

 

Any representation or statement made or deemedto be made by an Obligor in the Finance Documents or any other documentdelivered by or on behalf of any Obligor under or in connection with anyFinance Document is or proves to have been incorrect or misleading in anymaterial respect when made or deemed to be made unless the facts orcircumstances underlying the misrepresentation are capable of remedy and areremedied within the earlier of 20 Business Days of the Agent giving notice tothe Company and the Company becoming aware of the misrepresentation.

 

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26.5                   **Cross default**

 

(a)                          Any Financial Indebtedness of any member of the Group is not paid whendue nor within any originally applicable grace period.

 

(b)                         AnyFinancial Indebtedness of any member of the Group is declared to be orotherwise becomes due and payable prior to its specified maturity as a resultof an event of default (however described).

 

(c)                          Any commitment for any Financial Indebtedness of any member of the Groupis cancelled or suspended by a creditor of any member of the Group as a resultof an event of default (however described).

 

(d)                         Anycreditor of any member of the Group becomes entitled to declare any FinancialIndebtedness of any member of the Group due and payable prior to its specifiedmaturity 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 to pay its debts asthey fall due, suspends making payments on any of its debts or, by reason ofactual or anticipated financial difficulties, commences negotiations with oneor more of its creditors with a view to rescheduling any of its indebtedness.

 

(b)                         Thevalue of the assets of any member of the Group is less than its liabilities(taking into account contingent and prospective liabilities).

 

(c)                          A moratorium is declared in respect of any indebtedness of any member ofthe Group.

 

26.7                   **Insolvency proceedings**

 

(a)                          In relation to a member of the Group having its seat in Germany:

 

(i)                                    a petition for insolvency proceedings in respect of its assets (*Antrag auf Eröffnung eines Insolvenzverfahrens*)is filed, threatened to be filed or any event occurs which constitutes a causefor the initiation of insolvency proceedings (*Eröffnungsgrund*)as set out in sections 17 et seq. of the German Insolvency Code (*Insolvenzordnung*); or

 

(ii)                                 actions are taken pursuant to section 21 of the German InsolvencyCode by a competent court; or

 

(iii)                              it commences negotiations with one or more of its creditors with a viewto the general readjustment or rescheduling of its indebtedness; or

 

(b)                         withrespect to any member of the Group located outside Germany, any corporateaction, legal proceedings or other procedure or step is taken in relation to:

 

(i)                                    the suspension of payments, a moratorium of any indebtedness,winding-up, dissolution, administration or reorganisation (by way of 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 arrangement with any creditorof any member of the Group;

 

(iii)                              the appointment of a liquidator (other than in respect of a solvent liquidationof a member of the Group which is not an Obligor), receiver, administrativereceiver, administrator, compulsory manager or other similar officer in respectof any member of the Group or any of its assets; or

 

(iv)                             enforcement of any Security over any assets of any member of the Group,or

 

(c)                          any analogous procedure or step is taken in any jurisdiction,

 

provided that no Event of Default shall haveoccurred under this Clause 26.7 in respect of (A) an amalgamation,demerger, merger, consolidation or corporate reconstruction on a solvent basisof a member of the Group which is not an Obligor, or (B) any winding-uppetition which is frivolous or vexatious and is discharged, stayed or dismissedwithin 14 days of commencement and prior to its advertisement.

 

(d)                         unlessthe context otherwise requires, a reference in each Finance Document in respectof an entity incorporated in Finland to:

 

(i)                                    winding-up, administration or dissolution includes any declaration ofbankruptcy (*asetettu konkurssiin*);

 

(ii)                                 an insolvency includes a bankruptcy (*konkurssi*)and any business restructuring (*yrityssaneeraus*);

 

(iii)                              a liquidator in bankruptcy includes a “*pesänhoitaja*”;

 

(iv)                             an administrator includes a “*selvittäjä*”and “*valvoja*” in a businessrestructuring (*yrityssaneeraus*);and

 

(v)                                an attachment includes a “*takavarikko*”and/or any other “*turvaamistoimi*”granted in accordance with Finnish law.

 

26.8                   **Creditors’ process**

 

Any expropriation, attachment, sequestration,distress or execution or any analogous process in any jurisdiction affects anyasset or assets of a member of the Group and is not discharged within 5Business Days.

 

26.9                   **Ownership of the Obligors**

 

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

 

26.10             **Unlawfulness**

 

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

 

26.11             **Repudiation**

 

An Obligor repudiates a Finance Document orevidences an intention to repudiate a Finance Document.

 

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26.12             **Security and guarantees**

 

Any Security Document or any guarantee in, orany subordination under, any Finance Document is not in full force and effector any Security Document does not create in favour of the Security Agent for thebenefit of the Finance Parties, the Security which it is expressed to createfully perfected and with the ranking and priority it is expressed to have in amanner and to an extent which is or is reasonably likely to be materiallyadverse to the interests of the Lenders under the Finance Documents.

 

26.13             **Material adverse change**

 

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

 

26.14             **Litigation**

 

(a)                          Any litigation, arbitration, proceeding or dispute is started orthreatened 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 administrativeproceedings which are vexatious or frivolous.

 

26.15             **Cessation of business**

 

Any Obligor suspends or ceases (or threatens tosuspend or cease) to carry on all or a material part of its business except aspart of a Permitted Merger, Permitted Transaction or a Permitted Disposal.

 

26.16             **Acceleration**

 

(a)                          On and at any time after the occurrence of an Event of Default which iscontinuing the Agent may, and shall if so directed by the Majority Lenders, bynotice to the Company:

 

(i)                                    cancel the Total Commitments whereupon they shall immediately becancelled;

 

(ii)                                 declare that all or part of the Utilisations, together with accruedinterest, and all other amounts accrued or outstanding under the FinanceDocuments be immediately due and payable, whereupon they shall becomeimmediately due and payable;

 

(iii)                              declare that all or part of the Utilisations be payable on demand,whereupon they shall immediately become payable on demand by the Agent on theinstructions of the Majority Lenders; and/or

 

(iv)                             declare that full cash cover in respect of each Letter of Credit or BankGuarantee is immediately due and payable whereupon it shall become immediatelydue and payable.

 

(b)                         Promptlyafter being notified by the Agent of the Acceleration Date, each AncillaryLender shall by notice to the Company:

 

(i)                                    cancel its Ancillary Commitment whereupon it shall immediately becancelled;

 

(ii)                                 declare that all or the corresponding part of the utilisations under anyAncillary Facility provided by that Ancillary Lender, together with accruedinterest, full cash cover in respect of all or the corresponding part of thecontingent liabilities of that Ancillary Lender under that 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 the utilisations under anyAncillary Facility provided by that Ancillary Lender, together with accruedinterest, full cash cover in respect of all or the corresponding part of thecontingent liabilities of that Ancillary Lender under that Ancillary Facility,and all or the corresponding part of all other amounts accrued or outstandingin respect of that Ancillary Facility be payable upon demand, whereupon theyshall immediately become payable on demand by that Ancillary Lender (on theinstructions of the Agent, if so directed by the Majority Lenders).

 

(c)                          No Ancillary Lender may cancel the whole or any part of its AncillaryCommitment, declare that all or part of the utilisations under an AncillaryFacility provided by that Ancillary Lender be immediately due and payable orrequire the payment of cash cover in respect of all or any part of anycontingent 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**

 

**CHANGES TO PARTIES**

 

27.                         **CHANGES TO THE LENDERS**

 

27.1                   **Assignments and transfers by the Lenders**

 

Subject to this Clause 27, aLender (the “**Existing****Lender**”) may:

 

(a)                                 assign any of its rights; or

 

(b)                                transfer by novation any of its rights and obligations,

 

to another bank or financial institution or toa trust, fund or other entity which is regularly engaged in or established forthe purpose of making, purchasing or investing in loans, securities or otherfinancial assets (the “**New Lender**”).

 

27.2                   **Conditions of assignment or transfer**

 

(a)                          The consent of the Company is required for an assignment or transfer byan Existing Lender, unless the assignment or transfer is (i) prior to theSyndication Date, provided the New Lender is on the list of potential syndicatemembers agreed by the Company and the Agent, (ii) to another ExistingLender or an Affiliate of a Existing Lender or (iii) made while an Eventof Default is continuing.

 

(b)                         Theconsent of the Company to an assignment or transfer must not be unreasonablywithheld or delayed.  The Company will bedeemed to have given its consent five Business Days after the Existing Lenderhas requested it unless consent is expressly refused by the Company within thattime.

 

(c)                          The consent of the Company to an assignment or transfer must not bewithheld solely because the assignment or transfer may result in an increase tothe Mandatory Cost.

 

(d)                         Theconsent of the Issuing Bank to an assignment or transfer is required inaccordance with paragraph (a) of Clause 7.2 (*Assignments and transfers*).

 

(e)                          An assignment will only be effective on:

 

(i)                                    receipt by the Agent of written confirmation from the New Lender (inform and substance satisfactory to the Agent) that the New Lender will assumethe same obligations to the other Finance Parties as it would have been underif it was an Original Lender; and

 

(ii)                                 performance by the Agent of all necessary “know your customer” or othersimilar checks under all applicable laws and regulations in relation to suchassignment to a New Lender, the completion of which the Agent shall promptlynotify to the Existing Lender and the New Lender.

 

(f)         Atransfer will only be effective if the procedure set out in Clause 27.5 (*Procedure for transfer*) is complied with.

 

(g)        Any assignment or transfer by anExisting Lender to a New Lender shall only be effective if it transfers or assignsthe Existing Lender’s share of each Facility pro rata.

 

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(h)        If:

 

(i)                                    a Lender assigns or transfers any of its rights or obligations under theFinance Documents or changes its Facility Office; and

 

(ii)                                 as a result of circumstances existing at the date the assignment,transfer or change occurs, an Obligor would be obliged to make a payment to theNew Lender or Lender acting through its new Facility Office under Clause 16 (*Tax gross-up and indemnities*) or Clause 17 (*Increased Costs*),

 

then the New Lender or Lender acting throughits new Facility Office is only entitled to receive payment under those Clausesto the same extent as the Existing Lender or Lender acting through its previousFacility Office would have been if the assignment, transfer or change had notoccurred.

 

27.3                   **Assignment or transfer fee**

 

The New Lender shall, on the date upon which anassignment or transfer takes effect, pay to the Agent (for its own account) afee of €2,000.

 

27.4                   **Limitation of responsibility of Existing Lenders**

 

(a)                          Unless expressly agreed to the contrary, an Existing Lender makes norepresentation or warranty and assumes no responsibility to a New Lender for:

 

(i)                                    the legality, validity, effectiveness, adequacy or enforceability of theFinance Documents or any other documents;

 

(ii)                                 the financial condition of any Obligor;

 

(iii)                              the performance and observance by any Obligor of its obligations underthe Finance Documents or any other documents; or

 

(iv)                             the accuracy of any statements (whether written or oral) made in or inconnection with any Finance Document or any other document,

 

and any representations or warranties impliedby law are excluded.

 

(b)                         EachNew Lender confirms to the Existing Lender and the other Finance Parties thatit:

 

(i)                                    has made (and shall continue to make) its own independent investigationand assessment of the financial condition and affairs of each Obligor and itsrelated entities in connection with its participation in this Agreement and hasnot relied exclusively on any information provided to it by the Existing Lenderin connection with any Finance Document; and

 

(ii)                                 will continue to make its own independent appraisal of thecreditworthiness of each Obligor and its related entities whilst any amount isor may be outstanding under the Finance Documents or any Commitment is inforce.

 

(c)                          Nothing in any Finance Document obliges an Existing Lender to:

 

(i)                                    accept a re-transfer from a New Lender of any of the rights andobligations assigned or transferred under this Clause 27; or

 

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(ii)                                 support any losses directly or indirectly incurred by the New Lender byreason of the non-performance by any Obligor of its obligations under theFinance 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 the Existing Lender seeksto transfer by novation its rights and obligations under the Finance Documentseach of the Obligors and the Existing Lender shall be released from furtherobligations towards one another under the Finance Documents and theirrespective rights against one another under the Finance Documents shall becancelled (being the “**Discharged Rights andObligations**”);

 

(ii)                                 each of the Obligors and the New Lender shall assume obligations towardsone another and/or acquire rights against one another which differ from theDischarged Rights and Obligations only insofar as that Obligor and the NewLender have assumed and/or acquired the same in place of that Obligor and theExisting Lender;

 

(iii)                              the Agent, the Arranger, the Security Agent, the New Lender, the otherLenders, the Issuing Bank and any relevant Ancillary Lenders shall acquire thesame rights and assume the same obligations between themselves as they wouldhave acquired and assumed had the New Lender been an Original Lender with therights and/or obligations acquired or assumed by it as a result of the transferand to that extent the Agent, the Arranger, the Security Agent, the IssuingBank, any relevant Ancillary Lender and the Existing Lender shall each bereleased from further obligations to each other under the Finance Documents;and

 

(iv)                             the New Lender shall become a Party as a “Lender”.

 

27.6                   **Copy of Transfer Certificate to Company**

 

The Agent shall, as soon as reasonablypracticable after it has executed a Transfer Certificate, send to the Company acopy of that Transfer Certificate.

 

27.7                   **Disclosure of information**

 

Any Lender may disclose to any of itsAffiliates and any other person:

 

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(a)                                 to (or through) whom that Lender assigns or transfers (or maypotentially assign or transfer) all or any of its rights and obligations underthis Agreement;

 

(b)                                with (or through) whom that Lender enters into (or may potentially enterinto) any sub-participation in relation to, or any other transaction underwhich payments are to be made by reference to, this Agreement or any Obligor;

 

(c)                                 to whom, and to the extent that, information is required to be disclosedby any applicable law or regulation; or

 

(d)                                for whose benefit that Lender charges, assigns or otherwise createsSecurity (or may do so) pursuant to Clause 27.8 (*Securityover Lenders’ rights*),

 

any information about any Obligor, the Groupand the Finance Documents as that Lender shall consider appropriate if, inrelation to paragraphs (a), (b) and (d) (in respect of 26.8 (b) (*Creditors’ process*)) above, the person towhom the information is to be given has entered into a ConfidentialityUndertaking.  This Clause supersedes anyprevious agreement relating to the confidentiality of this information.

 

27.8                   **Security over Lenders’ rights**

 

In addition to the otherrights provided to Lenders under this Clause 27, each Lender may withoutconsulting with or obtaining consent from any Obligor, at any time charge,assign or otherwise create Security in or over (whether by way of collateral orotherwise) all or any of its rights under any Finance Document to secureobligations of that Lender including:

 

(a)                                 any charge, assignment or other Security to secure obligations to afederal reserve or central bank; and

 

(b)                                in the case of any Lender which is a fund, any charge, assignment orother Security granted to any holders (or trustee or representatives ofholders) of obligations owed, or securities issued, by that Lender as Securityfor those obligations or securities,

 

except that no such charge, assignment orSecurity shall:

 

(i)                                  release a Lender from any of its obligations under the Finance Documentsor substitute the beneficiary of the relevant charge, assignment or Securityfor the Lender as a party to any of the Finance Documents; or

 

(ii)                               require any payments to be made by an Obligor or grant to any person anymore extensive rights than those required to be made or granted to the relevantLender under the Finance Documents.

 

28.                         **CHANGES TO THE OBLIGORS**

 

28.1                   **Assignments and transfer by Obligors**

 

No Obligor may assign any of its rights ortransfer any of its rights or obligations under the Finance Documents.

 

28.2                   **Additional Borrowers**

 

(a)                          Subject to compliance with the provisions of paragraphs(c) and (d) of Clause 23.6 (*“Knowyour customer” checks*), the Company may request that any of itswholly 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 Facility approve theaddition of that Subsidiary;

 

(ii)                                 the Company delivers to the Agent a duly completed and executedAccession Letter;

 

(iii)                              the Company confirms that no Default is continuing or would occur as aresult of that Subsidiary becoming an Additional Borrower; and

 

(iv)                             the Agent has received all of the documents and other evidence listed inPart II of Schedule 2 (*Conditionsprecedent*) in relation to that Additional Borrower, each in form andsubstance satisfactory to the Agent.

 

(b)                         TheAgent shall notify the Company and the Lenders promptly upon being satisfiedthat it has received (in form and substance satisfactory to it) all thedocuments and other evidence listed in Part II of Schedule 2 (*Conditions precedent*).

 

28.3                   **Resignation of a Borrower**

 

(a)         In this Clause 28.3 (*Resignation of a Borrower*), Clause 28.5 (*Resignation of a Guarantor*) and Clause28.7 (*Resignation and release of Security ondisposal*), “**Third Party Disposal**”means the disposal of an Obligor to a person which is not a member of the Groupwhere that disposal is permitted under Clause 25.4 (*Disposals*) or made with the approval of the Majority Lenders(and the Parent has confirmed this is the case).

 

(b)        If a Borrower is the subject of a ThirdParty Disposal, the Company may request that such Borrower (other than theCompany) ceases to be a Borrower by delivering to the Agent a ResignationLetter.

 

(c)         TheAgent shall accept a Resignation Letter and notify the Company and the otherFinance Parties of its acceptance if:

 

(i)                                    the Company has confirmed that no Default is continuing or would resultfrom the acceptance of the Resignation Letter;

 

(ii)                                 the Borrower is under no actual or contingent obligations as a Borrowerunder any Finance Documents;

 

(iii)                              where the Borrower is also a Guarantor (unless its resignation has beenaccepted in accordance with Clause 28.5 (*Resignation of a Guarantor*)),its obligations 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 that any relevant NetSale Proceeds will be applied in accordance with Clause 11.5 (*Mandatory prepayment – Net Sale Proceeds*).

 

(d)                         Uponnotification by the Agent to the Company of its acceptance of the resignationof a Borrower, that company shall cease to be a Borrower and shall have nofurther rights or obligations under the Finance Documents as a Borrower exceptthat the resignation shall not take effect (and the Borrower will continue tohave rights and obligations under the Finance Documents) until the date onwhich the Third Party Disposal takes effect.

 

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(e)                          The Agent may, at the cost and expense of the Company, require a legalopinion from counsel to the Agent confirming the matters set out in paragraph(c)(iii) above and the Agent shall be under no obligation to accept aResignation Letter until it has obtained such opinion in form and substancesatisfactory to it.

 

28.4                   **Additional Guarantors**

 

(a)                          Subject to compliance with the provisions of paragraphs (c) and (d) ofClause 23.6 (*“Know your customer” checks*),the Company may request that any of its wholly owned Subsidiaries become anAdditional Guarantor.  That Subsidiaryshall become an Additional Guarantor if:

 

(i)                                    (except in the case of an Additional Guarantor incorporated in ajurisdiction of incorporation of an existing Obligor) the Agent approves theaddition of that Subsidiary;

 

(ii)                                 the Company delivers to the Agent a duly completed and executedAccession Letter; and

 

(iii)                              the Agent has received all of the documents and other evidence listed inPart II of Schedule 2 (*Conditionsprecedent*) in relation to that Additional Guarantor, each in formand substance satisfactory to the Agent.

 

(b)                         TheAgent shall notify the Company and the Lenders promptly upon being satisfiedthat it has received (in form and substance satisfactory to it) all thedocuments and other evidence listed in Part II of Schedule 2 (*Conditions precedent*).

 

28.5                   **Resignation of a Guarantor**

 

(a)                          The Company may request that a Guarantor (other than the Company) ceasesto be a Guarantor by delivering to the Agent a Resignation Letter if thatGuarantor is being disposed of by way of a Third Party Disposal (as defined inClause 28.3 (*Resignation of a Borrower*))and the Company has confirmed this is the case.

 

(b)                         TheAgent shall accept a Resignation Letter and notify the Company and the Lendersof its acceptance if:

 

(i)                                    the Company has confirmed that no Default is continuing or would resultfrom the acceptance of the Resignation Letter;

 

(ii)                                 no payment is due from the Guarantor under Clause 21.1 (*Guarantee and indemnity*);

 

(iii)                              where the Guarantor is also a Borrower, it is under no actual orcontingent obligations as a Borrower and has resigned and ceased to be aBorrower under Clause 28.3 (*Resignation of a Borrower*);and

 

(iv)                             the Company has confirmed that it shall ensure that the Net SaleProceeds will be applied, in accordance with Clause 11.5 (*MandatoryPrepayment – Net Sale Proceeds*).

 

(c)                          The resignation of that Guarantor shall not be effective until the dateof the relevant Third Party Disposal at which time that company shall cease tobe a Guarantor and shall have no further rights or obligations under theFinance Documents as a Guarantor.

 

28.6                   **Repetition of Representations**

 

Delivery of an AccessionLetter constitutes confirmation by the relevant Subsidiary that the RepeatingRepresentations and each of the representations set out in Clauses 22.5 (*Validity and admissibility in evidence*),  22.7 (*Deductionof Tax*) and  22.8 (*No filing or stamp taxes*) are true 

 

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

 

28.7                  **Resignation and release of security on disposal**

 

(a)                          If a Borrower or Guarantor is or is proposed to be the subject of aThird Party Disposal then:

 

(i)                                    where that Borrower or Guarantor created Security pursuant to anyFinance Document over any of its assets or business in favour of the SecurityAgent, or Security pursuant to any Finance Document in favour of the SecurityAgent was created over the shares (or equivalent) of that Borrower orGuarantor, the Security Agent may at the cost and request of the Company,release those assets, business or shares (or equivalent) and issue certificatesof non-crystallisation;

 

(ii)                                 the resignation of that Borrower or Guarantor and related release ofSecurity pursuant to any Finance Document referred to in paragraph (i) aboveshall not become effective until the date of that disposal; and

 

(iii)                              if the disposal of that Borrower or Guarantor is not made, theResignation Letter of that Borrower or Guarantor and the related release ofSecurity referred to in paragraph (i) above shall have no effect and theobligations of the Borrower or Guarantor and the Security pursuant to anyFinance Document created or intended to be created by or over that Borrower orGuarantor shall continue in full force and effect.

 

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**SECTION ****10**

 

**THE FINANCE PARTIES**

 

29.                         **ROLE OF THE AGENT, THE SECURITY AGENT AND THE ARRANGER**

 

29.1                   **Appointment of the Agent and the Security Agent**

 

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

 

(b)                         Eachother Finance Party appoints the Security Agent to act as security trusteeunder and in connection with the Finance Documents.

 

(c)                          Each other Finance Party authorises each of the Agent and the SecurityAgent to exercise the rights, powers, authorities and discretions specificallygiven to it under or in connection with the Finance Documents together with anyother incidental rights, powers, authorities and discretions.

 

29.2                   **Duties of the Agent and the Security Agent**

 

(a)                          The Agent shall promptly forward to a Party the original or a copy ofany document which is delivered to the Agent for that Party by any other Party.

 

(b)                         Exceptwhere a Finance Document specifically provides otherwise, the Agent is notobliged to review or check the adequacy, accuracy or completeness of anydocument it forwards to another Party.

 

(c)                          If the Agent receives notice from a Party referring to this Agreement,describing a Default and stating that the circumstance described is a Default,it shall promptly notify the Finance Parties.

 

(d)                         If theAgent is aware of the non-payment of any principal, interest, commitment fee orother fee payable to a Finance Party (other than the Agent or the Arranger)under this Agreement it shall promptly notify the other Finance Parties.

 

(e)                          The Agent shall promptly send to the Security Agent such certificationas the Security Agent may require pursuant to paragraph 7 (*Basis of distribution*) of Schedule 7 (*Security Agency provisions*).

 

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

 

29.3                   **Role of the Arranger**

 

Except as specifically provided in the FinanceDocuments, the Arranger has no obligations of any kind to any other Party underor in connection with any Finance Document.

 

29.4                   **Role of the Security Agent**

 

The Security Agent shall not be an agent of(except as expressly provided in any Finance Document) any Finance Party underor in connection with any Finance Document.

 

29.5                   **No fiduciary duties**

 

(a)                          Nothing in this Agreement constitutes the Agent, the Security Agent(except as expressly provided in any Finance Document) or the Arranger as atrustee or fiduciary of any other person.

 

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(b)                         Neitherthe Agent, the Security Agent (except as expressly provided in any FinanceDocument) nor the Arranger shall be bound to account to any Lender for any sumor the profit element of any sum received by it for its own account.

 

29.6                   **Business with the Group**

 

The Agent, the Security Agent and the Arrangermay accept deposits from, lend money to and generally engage in any kind ofbanking or other business with any member of the Group.

 

29.7                   **Rights and discretions of the Agent and the Security Agent**

 

(a)                          The Agent and the Security Agent may rely on:

 

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

 

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

 

(b)                         TheAgent and the Security Agent may assume (unless it has received notice to thecontrary in its capacity as agent for the Lenders or, as the case may be, assecurity trustee for the Finance Parties) that:

 

(i)                                    no Default has occurred (unless it has actual knowledge of a Defaultarising under Clause 26.1 (*Non-payment*));

 

(ii)                                 any right, power, authority or discretion vested in any Party or theMajority Lenders has not been exercised; and

 

(iii)                              any notice or request made by the Company (other than a UtilisationRequest or Selection Notice) is made on behalf of and with the consent andknowledge of all the Obligors.

 

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

 

(d)                         Eachof the Agent and the Security Agent may act in relation to the FinanceDocuments through its personnel and agents.

 

(e)                          The Agent may disclose to any other Party any information it reasonablybelieves it has received as agent under this Agreement.

 

(f)                            Notwithstanding any other provision of any Finance Document to thecontrary, neither the Agent, the Security Agent nor the Arranger is obliged todo or omit to do anything if it would or might in its reasonable opinionconstitute a breach of any law or regulation or a breach of a fiduciary duty orduty of confidentiality.

 

29.8                   **Majority Lenders’ instructions**

 

(a)                          Unless a contrary indication appears in a Finance Document, the Agentand the Security Agent shall (i) exercise any right, power, authority ordiscretion vested in it as Agent or Security Agent (as the case may be) inaccordance with any instructions given to it by the Majority Lenders (or, if soinstructed by the Majority Lenders, refrain from exercising any right, power,authority or discretion vested in it as Agent or Security Agent, as the casemay be) and (ii) not be liable for 

 

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any act (or omission) if itacts (or refrains from taking any action) in accordance with an instruction ofthe Majority Lenders.

 

(b)                         Unlessa contrary indication appears in a Finance Document, any instructions given bythe Majority Lenders will be binding on all the Finance Parties.

 

(c)                          Each of the Agent and the Security Agent may refrain from acting inaccordance with the instructions of the Majority Lenders (or, if appropriate,the Lenders) until it has received such security as it may require for anycost, loss or liability (together with any associated VAT) which it may incurin complying with the instructions.

 

(d)                         In theabsence of instructions from the Majority Lenders (or, if appropriate, theLenders), each of the Agent and the Security Agent may act (or refrain fromtaking action) as it considers to be in the best interest of the Lenders.

 

(e)                          Neither the Agent nor the Security Agent is  authorised to act on behalf of a Lender(without first obtaining that Lender’s consent) in any legal or arbitrationproceedings relating to any Finance Document.

 

29.9                   **Responsibility for documentation**

 

Neither the Agent, the Security Agent nor theArranger:

 

(a)                                 is responsible for the adequacy, accuracy and/or completeness of anyinformation (whether oral or written) supplied by the Agent, the SecurityAgent, the Arranger, an Obligor or any other person given in or in connectionwith any Finance Document or the Information Memorandum; or

 

(b)                                is responsible for 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.

 

29.10             **Exclusion of liability**

 

(a)                          Without limiting paragraph (b) below (and without prejudice to theprovisions of paragraph (e) of Clause 33.11 (*Disruption to Payment Systems etc*)), neither the Agent northe Security Agent will be liable including without limitation for negligenceor any other category of liability whatsoever for any action taken by it underor in connection with any Finance Document, unless directly caused by its grossnegligence or wilful misconduct.

 

(b)                         NoParty (other than the Agent or the Security Agent) may take any proceedingsagainst any officer, employee or agent of the Agent or the Security Agent inrespect of any claim it might have against the Agent or the Security Agent orin respect of any act or omission of any kind by that officer, employee oragent in relation to any Finance Document and any officer, employee or agent ofthe Agent or the Security Agent may rely on this Clause.

 

(c)                          Neither the Agent nor the Security Agent will be liable for any delay(or any related consequences) in crediting an account with an amount requiredunder the Finance Documents to be paid by it if it has taken all necessarysteps as soon as reasonably practicable to comply with the regulations oroperating procedures of any recognised clearing or settlement system used by itfor that purpose.

 

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(d)                         Nothingin this Agreement shall oblige the Agent or the Arranger to carry out any “knowyour customer” or other checks in relation to any person on behalf of anyLender and each Lender confirms to the Agent and the Arranger that it is solelyresponsible for any such checks it is required to carry out and that it may notrely on any statement in relation to such checks made by the Agent or theArranger.

 

29.11             **Lenders’ indemnity to the Agent and the Security Agent**

 

Each Lender shall (inproportion to its share of the Total Commitments or, if the Total Commitmentsare then zero, to its share of the Total Commitments immediately prior to theirreduction to zero) indemnify the Agent and the Security Agent, within threeBusiness Days of demand, against any cost, loss or liability including withoutlimitation for negligence or any other category of liability whatsoeverincurred by the Agent or the Security Agent (otherwise than by reason of itsgross negligence or wilful misconduct) (or in the case of any cost, loss orliability pursuant to Clause 33.11 (*Disruptionto Payment Systems etc.*) notwithstanding the Agent’s negligence,gross negligence or any other category of liability whatsoever but notincluding any claim based on the fraud of the Agent) in acting as Agent or, asthe case may be, Security Agent under the Finance Documents (unless it has beenreimbursed by an Obligor pursuant to a Finance Document).

 

29.12             **Resignation of the Agent or the Security Agent**

 

(a)                          The Agent or the Security Agent may resign and appoint one of itsAffiliates acting through an office in the United Kingdom, Germany or Finlandas successor by giving notice to the other Finance Parties and the Company.

 

(b)                         Alternativelythe Agent or the Security Agent may resign by giving notice to the otherFinance Parties and the Company, in which case the Majority Lenders (afterconsultation with the Company) may appoint a successor Agent or, as the casemay be, Security Agent in each case acting through an office in the UnitedKingdom, Germany or Finland.

 

(c)                          If the Majority Lenders have not appointed a successor Agent or, as thecase may be, Security Agent in accordance with paragraph (b) above within30 days after notice of resignation was given, the Agent or, as the case maybe, Security Agent (after consultation with the Company) may appoint asuccessor Agent or Security Agent.

 

(d)                         Theretiring Agent or Security Agent shall, at its own cost, make available to itssuccessor such documents and records and provide such assistance as itssuccessor may reasonably request for the purposes of performing its functionsas Agent or Security Agent under the Finance Documents.

 

(e)                          The resignation notice of the Agent or Security Agent shall only takeeffect upon the appointment of a successor.

 

(f)                            Upon the appointment of a successor, the retiring Agent or SecurityAgent shall be discharged from any further obligation in respect of the FinanceDocuments but shall remain entitled to the benefit of this Clause 29. Itssuccessor and each of the other Parties shall have the same rights andobligations amongst themselves as they would have had if such successor hadbeen an original Party.

 

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(g)                         Afterconsultation with the Company, the Majority Lenders may, by notice to the Agentor, as the case may be, the Security Agent, require it to resign in accordancewith paragraph (b) above.  In thisevent, the Agent or, as the case may be, the Security Agent shall resign inaccordance with paragraph (b) above.

 

29.13             **Confidentiality**

 

(a)                          The Agent (in acting as agent for the Finance Parties) and the SecurityAgent (in acting as security trustee for the Finance Parties) shall be regardedas acting through its respective agency or security trustee division which ineach case shall be treated as a separate entity from any other of its divisionsor departments.

 

(b)                         Ifinformation is received by another division or department of the Agent or, asthe case may be, the Security Agent, it may be treated as confidential to thatdivision or department and the Agent or, as the case may be, the Security Agentshall not be deemed to have notice of it.

 

29.14             **Relationship with the Lenders**

 

(a)                          The Agent may treat each Lender as a Lender, entitled to payments underthis Agreement and acting through its Facility Office unless it has receivednot less than five Business Days prior notice from that Lender to the contraryin accordance with the terms of this Agreement.

 

(b)                         EachLender shall supply the Agent with any information required by the Agent inorder to calculate the Mandatory Cost in accordance with Schedule 4 (*Mandatory Cost**formulae*).

 

29.15             **Credit appraisal by the Lenders**

 

Without affecting the responsibility of anyObligor for information supplied by it or on its behalf in connection with anyFinance Document, each Lender confirms to the Agent, the Security Agent and theArranger that it has been, and will continue to be, solely responsible formaking its own independent appraisal and investigation of all risks arisingunder or in connection with any Finance Document including but not limited to:

 

(a)                                 the financial condition, status and nature of each member of the Group;

 

(b)                                the legality, validity, effectiveness, adequacy or enforceability of anyFinance Document and any other agreement, Security, arrangement or documententered into, made or executed in anticipation of, under or in connection withany Finance Document;

 

(c)                                 whether that Lender has recourse, and the nature and extent of thatrecourse, against any Party or any of its respective assets under or inconnection with any Finance Document, the transactions contemplated by theFinance Documents or any other agreement, Security, arrangement or documententered into, made or executed in anticipation of, under or in connection withany Finance Document; and

 

(d)                                the adequacy, accuracy and/or completeness of the Information Memorandumand any other information provided by the Agent, the Security Agent, any Partyor by any other person under or in connection with any Finance Document, thetransactions contemplated by the Finance Documents or any other agreement,Security, arrangement or document entered into, made or executed inanticipation of, under or in connection with any Finance Document.

 

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29.16             **Reference Banks**

 

If a Reference Bank (or, if a Reference Bank isnot a Lender, the Lender of which it is an Affiliate) ceases to be a Lender,the Agent shall (in consultation with the Company) appoint another Lender or anAffiliate of a Lender to replace that Reference Bank.

 

29.17             **Management time of the Agent and the Security Agent**

 

If an Event of Default hasoccurred and is continuing, any amount payable to the Agent or the Security Agentunder Clause 18.3 (*Indemnity to the Agent**and the Security**Agent*), Clause 20 (*Costs and expenses*) and Clause 29.11 (*Lenders’ indemnity to the Agent**and the Security**Agent*) shall include the cost of 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**

 

The provisions of Schedule 7 (*Security Agency provisions*) shall bindeach Party.

 

29.19             **Deduction from amounts payable by the Agent or the SecurityAgent**

 

If any Party owes an amount to the Agent or theSecurity Agent under the Finance Documents the Agent or the Security Agent (asthe case may be) may, after giving notice to that Party, deduct an amount notexceeding that amount from any payment to that Party which the Agent or theSecurity Agent (as the case may be) would otherwise be obliged to make underthe Finance Documents and apply the amount deducted in or towards satisfactionof the amount owed.  For the purposes ofthe Finance Documents that Party shall be regarded as having received anyamount so deducted.

 

30.                         **PARALLEL DEBT**

 

(a)                          Each Obligor hereby irrevocably and unconditionally undertakes to pay tothe Security Agent amounts equal to any amounts owing from time to time by thatObligor to any Finance Party under any Finance Document as and when thoseamounts are due.

 

(b)                         EachObligor and the Security Agent acknowledge that the obligations of each Obligorunder paragraph (a) are several and are separate and independentfrom, and shall not in any way affect, the corresponding obligations of thatObligor to any Finance Party under any Finance Document (its “**Corresponding Debt**”) provided that:

 

(i)                                    the amounts for which each Obligor is liable under paragraph (a) (its“**Parallel Debt**”) shall bedecreased to the extent that its Corresponding Debt has been irrevocably paidor (in the case of guarantee obligations) discharged; and

 

(ii)                                 the Corresponding Debt of each Obligor shall be decreased to the extentthat its Parallel Debt has been irrevocably paid or (in the case of guaranteeobligations) discharged; and

 

(iii)                              the Parallel Debt of an Obligor shall not exceed its Corresponding Debt.

 

(c)                          For the purpose of this Clause 30, the Security Agent acts in its ownname and not as a trustee, and its claims in respect of the Parallel Debt shallnot be held on trust. The Security granted under the Secured Documents to theSecurity Agent to secure the Parallel Debt is granted to the Security Agent inits capacity as creditor of the Parallel Debt and shall not be held on trust.

 

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(d)                         Allmonies received by the Security Agent pursuant to this Clause, and all amountsreceived by the Security Agent from or by the enforcement of any Securitygranted to secure the Parallel Debt, shall be applied in accordance withparagraph 15 (*Order of application*)of Schedule 7 (*Security Agency provisions*)of this Agreement.

 

(e)                          Without limiting or affecting the Security Agent’s rights against theObligors (whether under this Clause or under any other provision of the FinanceDocument), each Obligor acknowledges that:

 

(i)                                    nothing in this Clause shall impose any obligation on the Security Agentto advance any sum to any Obligor or otherwise under any Finance Document,except in its capacity as Senior Lender; and

 

(ii)                                 for the purpose of any vote taken under any Finance Document, theSecurity Agent shall not be regarded as having any participation or commitmentother than those which it has in its capacity as a Lender.

 

31.                         **CONDUCT OF BUSINESS BY THE FINANCE PARTIES**

 

No provision of this Agreement will:

 

(a)                                 interfere with the right of any Finance Party to arrange its affairs(tax or otherwise) in whatever manner it thinks fit;

 

(b)                                oblige any Finance Party to investigate or claim any credit, relief,remission or repayment available to it or the extent, order and manner of anyclaim; or

 

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

 

32.                         **SHARING AMONG THE FINANCE PARTIES**

 

32.1                   **Payments to Finance Parties**

 

If a Finance Party (a “**Recovering Finance Party**”) receives or recoversany amount from an Obligor other than in accordance with Clause 33 (*Payment mechanics*) and applies that amountto a payment due under the Finance Documents then:

 

(a)                                 the Recovering Finance Party shall, within three Business Days, notifydetails of the receipt or recovery to the Agent;

 

(b)                                the Agent shall determine whether the receipt or recovery is in excessof the amount the Recovering Finance Party would have been paid had the receiptor recovery been received or made by the Agent and distributed in accordancewith Clause 33 (*Payment mechanics*), withouttaking account of any Tax which would be imposed on the Agent in relation tothe receipt, recovery or distribution; and

 

(c)                                 the Recovering Finance Party shall, within three Business Days of demandby the Agent, pay to the Agent an amount (the “**SharingPayment**”) equal to such receipt or recovery less any amount whichthe Agent determines may be retained by the Recovering Finance Party as itsshare of any payment to be made, in accordance with Clause 33.5 (*Partial payments*).

 

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32.2                   **Redistribution of payments**

 

The Agent shall treat theSharing Payment as if it had been paid by the relevant Obligor and distributeit between the Finance Parties (other than the Recovering Finance Party) inaccordance with Clause 33.5 (*Partialpayments*).

 

32.3                   **Recovering Finance Party’s rights**

 

(a)                          On a distribution by the Agent under Clause 32.2 (*Redistributionof payments*), the Recovering Finance Party will be subrogated to therights of the Finance Parties which have shared in the redistribution.

 

(b)                         If andto the extent that the Recovering Finance Party is not able to rely on itsrights under paragraph (a) above, the relevant Obligor shall be liable tothe Recovering Finance Party for a debt equal to the Sharing Payment which isimmediately due and payable.

 

32.4                   **Reversal of redistribution**

 

If any part of the Sharing Payment received orrecovered by a Recovering Finance Party becomes repayable and is repaid by thatRecovering Finance Party, then:

 

(a)                                 each Finance Party which has received a share of the relevant SharingPayment pursuant to Clause 32.2 (*Redistribution of payments*)shall, upon request of the Agent, pay to the Agent for account of thatRecovering Finance Party an amount equal to the appropriate part of its shareof the Sharing Payment (together with an amount as is necessary to reimbursethat Recovering Finance Party for its proportion of any interest on the SharingPayment which that Recovering Finance Party is required to pay); and

 

(b)                                that Recovering Finance Party’s rights of subrogation in respect of anyreimbursement shall be cancelled and the relevant Obligor will be liable to thereimbursing Finance Party for the amount so reimbursed.

 

32.5                   **Exceptions**

 

(a)                          This Clause 32 shall not apply to the extent that the Recovering FinanceParty would not, after making any payment pursuant to this Clause, have a validand enforceable claim against the relevant Obligor.

 

(b)                         ARecovering Finance Party is not obliged to share with any other Finance Partyany amount which the Recovering Finance Party has received or recovered as aresult of taking legal or arbitration proceedings, if:

 

(i)                                    it notified that other Finance Party of the legal or arbitrationproceedings; and

 

(ii)                                 that other Finance Party had an opportunity to participate in thoselegal or arbitration proceedings but did not do so as soon as reasonablypracticable having received notice and did not take separate legal orarbitration proceedings.

 

32.6                   **Loss sharing**

 

(a)                          In this Clause:

 

“**Loss Sharing Date**” means the date (if any) on which the Agentexercises any of its rights under paragraph (a)(ii) and/or (a)(iv) ofClause 26.16 (*Acceleration*) orthe date (if any) on which the Facilities are cancelled under Clause 11.3 (*Change of control*).

 

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(b)                         If, atany time after the Loss Sharing Date, for any reason:

 

(i)                                    any outstandings under Facility B or any Ancillary Facility will not berepaid and/or discharged; and

 

(ii)                                 any resulting loss is not 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,

 

the Facility B Lenders and the AncillaryLenders shall make such payments between themselves as the Agent shall requireto ensure that after taking into account such payments, any such loss is sharedbetween the Facility B Lenders and the Ancillary Lenders pro rata to the amountwhich their respective exposures, whether drawn or undrawn, bore to their totalexposure, whether drawn or undrawn, 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 is required to make apayment under a Finance Document, that Obligor (subject to Clause 33.10 (*Payments to the Security Agent*) )or Lendershall make the same available to the Agent (unless a contrary indicationappears in a Finance Document) for value on the due date at the time and insuch funds specified by the Agent as being customary at the time for settlementof transactions in the relevant currency in the place of payment.

 

(b)                         Paymentshall be made to such account in the principal financial centre of the countryof that currency (or, in relation to euro, in the principal financial centre ina Participating Member State or  London)with such bank as the Agent specifies.

 

33.2                   **Distributions by the Agent**

 

Each payment received by theAgent under the Finance Documents for another Party shall, subject to Clause33.3 (*Distributions to**an**Obligor*)and Clause 33.4 (*Clawback*) andClause 33.10 (*Payments to the Security Agent*),be made available by the Agent as soon as practicable after receipt to theParty entitled to receive payment in accordance with this Agreement (in thecase of a Lender, for the account of its Facility Office), to such account asthat Party may notify to the Agent by not less than five Business Days’ noticewith a bank in the principal financial centre of the country of that currency(or, in relation to euro, in the principal financial centre of a ParticipatingMember State or London).

 

33.3                   **Distributions to an Obligor**

 

The Agent and the SecurityAgent may (with the consent of the Obligor or in accordance with Clause 34 (*Set-off*)) apply any amount received by itfor that Obligor in or towards payment (on the date and in the currency and fundsof receipt) of any amount due from that Obligor under the Finance Documents orin or towards purchase of any amount of any currency to be so applied.

 

33.4                   **Clawback**

 

(a)                          Where a sum is to be paid to the Agent or the Security Agent under theFinance Documents for another Party, the Agent or, as the case may be, theSecurity Agent is not obliged to pay that sum to that other Party (or to enterinto or perform any related exchange contract) until it has been able toestablish to its satisfaction that it has actually received that sum.

 

(b)                         If theAgent or the Security Agent pays an amount to another Party and it proves to bethe case that it had not actually received that amount, then the Party to whomthat amount (or the proceeds of any related exchange contract) was paid shallon demand refund the same to the Agent or, as the case may be, the SecurityAgent together with interest on that amount from the date of payment to thedate of receipt by the Agent or, as the case may be, the Security Agent, calculatedby it to reflect its cost of funds.

 

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33.5                   **Partial payments**

 

(a)                          If the Agent receives a payment that is insufficient to discharge allthe amounts then due and payable by an Obligor under the Finance Documents, theAgent shall apply that payment towards the obligations of that Obligor underthe Finance Documents in the following order:

 

(i)                                    first, in or towards payment pro rata of any unpaid fees, costs andexpenses of the Agent, the Security Agent, the Issuing Bank or the Arrangerunder the Finance Documents;

 

(ii)                                 secondly, in or towards payment pro rata of any accrued interest, fee orcommission due but unpaid under this Agreement or any Ancillary FacilityDocument;

 

(iii)                              thirdly, in or towards payment pro rata of any principal due but unpaidunder this Agreement or any Ancillary Facility Document and any amount due butunpaid under Clauses 7.4 (*Claims under a Letter ofCredit or Bank Guarantee*) and 7.5 (*Indemnities*);and

 

(iv)                             fourthly, in or towards payment pro rata of any other sum due but unpaidunder the Finance Documents or any Ancillary Finance Document,

 

provided that the Agent shallnot make any such payments to any Ancillary Lender prior to the Agentdelivering 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)                         TheAgent shall, if so directed by the Majority Lenders, vary the order set out inparagraphs (a)(ii) to (iv) above.

 

(c)                          Paragraphs (a) and (b) above will override any appropriationmade by an Obligor.

 

33.6                   **No set-off by Obligors**

 

All payments to be made by an Obligor under theFinance Documents shall be calculated and be made without (and free and clearof any deduction for) set-off or counterclaim.

 

33.7                   **Business Days**

 

(a)                          Any payment which is due to be made on a day that is not a Business Dayshall be made on the next Business Day in the same calendar month (if there isone) or the preceding Business Day (if there is not).

 

(b)                         Duringany extension of the due date for payment of any principal or Unpaid Sum underthis Agreement interest is payable on the principal or Unpaid Sum at the ratepayable on the original due date.

 

33.8                   **Currency of account**

 

(a)                          Subject to paragraphs (b) to (e) below, the Base Currency isthe currency of account and payment for any sum due from an Obligor under anyFinance Document.

 

(b)                         Arepayment of a Utilisation or Unpaid Sum or a part of a Utilisation or UnpaidSum shall be made in the currency in which that Utilisation or Unpaid Sum isdenominated on its due date.

 

(c)                          Each payment of interest shall be made in the currency in which the sumin respect of which the interest is payable was denominated when that interestaccrued.

 

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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 and Waivers*);

 

(e)                                   the Agent shall not be liable for any damages, costsor losses whatsoever  (including, withoutlimitation for negligence, gross negligence or any other category of liabilitywhatsoever but not including any claim based on the fraud of the Agent) arisingas a result of its taking, or failing to take, any actions pursuant to or inconnection with this Clause 33.11; 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 Documents shallbe made in writing and, unless otherwise stated, may be made by fax or letter.

 

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 theSecurity Agent, that identified with its name in the signature pages below,

 

or anysubstitute address, fax number or department or officer as the Party may notifyto the Agent (or the Agent may notify to the other Parties, if a change is madeby 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 fax number**

 

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 mail address and/or anyother information required to enable the sending and receipt of information bythat means; and

 

(iii)                              notify each other of any change to their address or any other suchinformation 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 AND CERTIFICATES**

 

36.1                     **Accounts**

 

In anylitigation or arbitration proceedings arising out of or in connection with aFinance 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 RelevantInterbank Market differs, in accordance with that market practice.

 

37.                         **PARTIAL INVALIDITY**

 

If, atany time, any provision of the Finance Documents is or becomes illegal, invalidor unenforceable in any respect under any law of any jurisdiction, neither thelegality, validity or enforceability of the remaining provisions nor thelegality, validity or enforceability of such provision under the law of anyother 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*);

 

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(iii)                              a reduction in the Margin or a reduction in the amount of any payment ofprincipal, 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 of all the Lenders;

 

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

 

(viii)                       therelease of any Security created pursuant to any Security Document or of anyasset charged thereunder (except as provided in any Security Document or madepursuant 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.

 

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**SECTION ****12**

 

**GOVERNING LAWAND 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.**

 

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** **

**SCHEDULE 1**

 

**THE ORIGINAL PARTIES**

 

**PART I**

** **

**THE ORIGINAL OBLIGORS**

 
| **Name of Original Borrower** | ** ** | **Registration number (or  equivalent, if any)** |
|-------------------------------|------------|--------------------------------------------------|
|                          |       |                                             |
| SACHTLEBEN  CHEMIE GMBH       |       | HR B  1 96 69                                    |
|                          |       |                                             |
| FINNISH  HOLDCO               |       | 2196924-0                                        |
|                          |       |                                             |
| KEMIRA  PIGMENTS OY           |       | 0948159-2                                        |

 
| **Name of Original Guarantor** | ** ** | **Registration number (or  equivalent, if any)** |
|--------------------------------|------------|--------------------------------------------------|
|                           |       |                                             |
| SACHTLEBEN  CHEMIE GMBH        |       | HR B  1 96 69                                    |
|                           |       |                                             |
| FINNISH  HOLDCO                |       | 2196924-0                                        |
|                           |       |                                             |
| KEMIRA  PIGMENTS OY            |       | 0948159-2                                        |

 

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**PART II**

 

**THE ORIGINAL LENDERS**

 
| **Name of Original Lender**              | ** ** | **Facility A Commitment****(€)** | ** ** | **Facility B Commitment****(€)** |
|------------------------------------------|------------|---------------------------------------|------------|---------------------------------------|
| Skandinaviska  Enskilda Banken AB (publ) |       | 150,000,000                           |       | 15,000,000                            |
| Nordea  Bank Finland Plc                 |       | 150,000,000                           |       | 15,000,000                            |

 

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SIGNATUREPAGES

 

**The****Company**

 

DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH

 
| Address:                 | Dr. –  Rudolf – Sachtleben – Str. 4 |
|--------------------------|---------------------------------------------------------|
|                     | 47198,  Duisburg                                        |
|                     | Germany                                                 |
|                     |                                                    |
| Fax:  +49 (2066) 22-3201 |

 
| Email:  w.d.griebler@sachtleben.de                                      |
|-------------------------------------------------------------------------|
|                                                                    |
| Attention:  Wolf-Dieter Griebler                                        |
|                                                                    |
| By:                                                                     | /s/ DR  MARCUS BRUNE |   |
|                                                                    | Dr.  Marcus Brune |
|                                                                    |   |
|                                                                    |   |
| **The****Original Borrowers**                                           |
|                                                                    |
| Deukalion  Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH |
|                                                                    |
| By:                                                                     | /s/ DR  MARCUS BRUNE |   |
|                                                                    | Dr  Marcus Brune |
|                                                                    |   |
|                                                                    |   |
| Sachtleben  Chemie GmbH                                                 |   |
|                                                                    |   |
| By:                                                                     | /s/ DR  MARTIN BURGHOLTE |   | /s/  PROF WOLF-DIETER GRIEBLER |
|                                                                    | Dr  Martin Burgholte |   | Prof  Wolf-Dieter Griebler |
|                                                                    |   |   |
|                                                                    |   |   |
| White  Pigments Holding Oy                                              |   |
|                                                                    |   |
| By:                                                                     | /s/  UDO PINGER |   |
|                                                                    | Udo  Pinger |   |
|                                                                    |   |   |
|                                                                    |   |   |
| Kemira  Pigments Oy                                                     |   |
|                                                                    |   |   |
| By:                                                                     | /s/  HANNU VIROLAINEN |   |
|                                                                    | Hannu  Virolainen |   |
|                                                                    |   |
|                                                                    |   |
| **The****Original Guarantors**                                          |   |
|                                                                    |   |
| Deukalion  Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH |
|                                                                    |   |
| By:                                                                     | /s/  DR MARCUS BRUNE |   |
|                                                                    | Dr  Marcus Brune |   |

 

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| Sachtleben  Chemie GmbH                                    |                     |
|------------------------------------------------------------|--------------------------|
|                                                       |                     |
| By:                                                        | /s/ DR  MARTIN BURGHOLTE |   | /s/ PROF  WOLF-DIETER GRIEBLER |
|                                                       | Dr Martin  Burgholte     |   | Prof  Wolf-Dieter Griebler |
|                                                       |                     |
|                                                       |                     |
| White  Pigments Holding Oy                                 |                     |
|                                                       |                     |
| By:                                                        | /s/ UDO  PINGER          |   |
|                                                       | Udo  Pinger              |   |
|                                                       |                     |
|                                                       |                     |
| Kemira  Pigments Oy                                        |                     |
|                                                       |                     |
| By:                                                        | /s/ HANNU  VIROLAINEN    |   |
|                                                       | Hannu  Virolainen        |   |
|                                                       |                     |
|                                                       |                     |
| **The Arranger**                                           |                     |
|                                                       |                     |
| Merchant  Banking, Skandinaviska Enskilda Banken AB (publ) |                     |
|                                                       |                     |
| By:                                                        | /s/ MALCOLM  CROW        |   | /s/ ÄSA  SAMUELSSON |
|                                                       | Malcolm  Crow            |   | Äsa Samuelsson |
|                                                       |                     |
|                                                       |                     |
| Nordea  Bank Finland plc                                   |                     |
|                                                       |                     |
| By:                                                        | /s/ ESA  RAITANEN        |   | /s/ JUHA-MATTI  PELTOMAA |
|                                                       | Esa Raitanen             |   | Juha-Matti  Peltomaa |
|                                                       |                     |
|                                                       |                     |
| **The Original Lenders**                                   |                     |
|                                                       |                     |
| Skandinaviska  Enskilda Banken AB (publ)                   |                     |
|                                                       |                     |
| By:                                                        | /s/ MALCOLM  CROW        |   | /s/ ÄSA  SAMUELSSON |
|                                                       | Malcolm  Crow            |   | Äsa Samuelsson |
|                                                       |                     |
|                                                       |                     |
| Nordea  Bank Finland Plc                                   |                     |
|                                                       |                     |
| By:                                                        | /s/  ESA RAITANEN        |   | /s/ JUHA-MATTI  PELTOMAA |
|                                                       | Esa Raitanen             |   | Juha-Matti  Peltomaa |
|                                                            |                          |  |  |  |  |

 

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**The Agent**

 

MerchantBanking, Skandinaviska Enskilda Banken AB (publ)

 
| Address:         |              | Skandinaviska  Enskilda Banken AB (publ) |
|------------------|-------------------|------------------------------------------|
|             |              | Rissneleden  110                         |
|             |              | SE-106  40 Stockholm                     |
|             |              |                                     |
| Attention:       |              | SCO                                      |
|             |              |                                     |
| E-mail:          |              | sco@seb.se                               |
|             |              |                                     |
| Fax  number:     |              | + 46  8 611 03 84                        |
|             |              |                                     |
| With  a copy to: |              |                                     |
| Address:         |              | Loan  Agency                             |
|             |              | Capital  Markets, SEB                    |
|             |              | Scandinavian  House                      |
|             |              | 2  Cannon Street                         |
|             |              | London  EC4M 6XX                         |
|             |              |                                     |
| E-mail:          |              | agency@seb.co.uk                         |
| Fax  number:     |              | + 44  207 329 2304                       |
|             |              |                                     |
|             |
| By:              | /s/ MALCOLM  CROW |                                     | /s/ ÄSA  SAMUELSSON |
|             | Malcolm  Crow     |                                     | Äsa  Samuelsson |
|                  |                   |                                          |  |  |  |

 

 

**The****Security Agent**

 

MerchantBanking, 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:                                                        | /s/ MALCOLM  CROW |                  | /s/ ÄSA  SAMUELSSON |
|                                                       | Malcolm  Crow     |                  | Äsa  Samuelsson |
|                                                       |              |                  |   |
|                                                       |              |                  |   |
| **The****Issuing Bank**                                    |              |                  |
|                                                       |              |                  |   |
| Merchant  Banking, Skandinaviska Enskilda Banken AB (publ) |              |
|                                                       |              |                  |   |
| By:                                                        | /s/ MALCOLM  CROW |                  | /s/ ÄSA  SAMUELSSON |
|                                                       | Malcolm  Crow     |                  | Äsa  Samuelsson |
|                                                            |                   |                       |  |  |  |

 

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