**Exhibit 10.3**

 

EXECUTION VERSION

 

 

 

AMENDMENT AND RESTATEMENTAGREEMENT

 

 

dated 29 August 2008

 

 

for

 

deukalioneinhundertvierundzwanzigste vermÖgensverwaltungs - gmbh

 

 

arranged by

merchantbanking, skandinaviska enskilda banken ab (publ) and nordea bank finland plC

 

 

with

 

 

merchant banking,skandinaviska enskilda banken ab (publ)

acting as Agent

 

 

RELATING TO A FACILITYAGREEMENT DATED

 

17 June 2008

 

 

 

Ref: NHAX/GEM

 

Linklaters LLP

 

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**CONTENTS**

 
| **CLAUSE**                           | ** **                      | ** ** | **PAGE** |
|--------------------------------------|---------------------------------|------------|----------|
|                                 |                            |       |     |
| 1.                                   | Definitions  and interpretation |       | 1        |
| 2.                                   | Conditions  precedent           |       | 2        |
| 3.                                   | Representations                 |       | 2        |
| 4.                                   | Amendment                       |       | 2        |
| 5.                                   | Transaction  expenses           |       | 2        |
| 6.                                   | Miscellaneous                   |       | 2        |
| 7.                                   | Governing  law                  |       | 3        |
|                                 |                            |       |     |
| **THE SCHEDULES**                    |
| ** **                           |
| ** **                           |
| **SCHEDULE**                         | ** **                      | ** ** | **PAGE** |
|                                 |                            |       |
| SCHEDULE 1 The Original Obligors     |                            | 4          |
| SCHEDULE 2 Conditions precedent      |                            | 5          |
| SCHEDULE 3 Form of Amended Agreement |                            | 7          |
|                                      |                                 |            |          |  |  |

 

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THIS AGREEMENT is dated                August 2008 and madebetween:

 

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

 

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

 

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

 

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

 

IT IS AGREED as follows:

 

1.                                 **Definitions and interpretation**

 

1.1                           **Definitions**

 

In this Agreement:

 

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

 

“**Effective Date**” means the date of thisAgreement.

 

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

 

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

 

1.2                           **Incorporation of defined terms**

 

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

 

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

 

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.

 

1.4                           **Designation**

 

In accordance withthe Original Facility Agreement, each of the Company and the Agent designatethis Agreement as a Finance Document.

 

1

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2.                                 **Conditions SUBSEQUENT**

 

The Company shalldeliver to the Agent all the documents and other evidence listed in Schedule 2(*Conditions subsequent*) in formand substance satisfactory to the Agent by no later than the initialUtilisation Date. Any failure by the Company to fulfil these conditions shallbe a breach of the Amended Agreement.

 

3.                                 **Representations**

 

Each Obligor makesthe Repeating Representations, and the representations and warranties in Clause22.5 (*Validity and admissibility in evidence*),22.7 (*Deduction of Tax*) and 22.8(*No filing or stamp taxes*) of theOriginal Facility Agreement, by reference to the facts and circumstances thenexisting:

 

(a)                                   on the date of this Agreement; and

 

(b)                                  on the Effective Date,

 

but as if referencesin Clause 22 (*Representations*) ofthe Original Facility Agreement to “the Finance Documents” include thisAgreement and, on the Effective Date, the Amended Agreement.

 

4.                                 **Amendment**

 

4.1                           **Amendment**

 

With effect from theEffective Date the Original Facility Agreement shall be amended and restated inthe form set out in Schedule 3 (*Form ofAmended Agreement*).

 

4.2                           **Continuing obligations**

 

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

 

5.                                 **Transaction expenses**

 

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

 

6.                                 **Miscellaneous**

 

6.1                           **Incorporation of terms**

 

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

 

6.2                           **Counterparts**

 

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

 

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7.                                 **Governing law**

 

This Agreement isgoverned by English law.

** **

**This Agreement has beenentered into on the date stated at the beginning of this Agreement.**

 

3

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**SCHEDULE 1**

 

**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                                                                |

 

4

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**SCHEDULE 2**

 

**CONDITIONS SUBSEQUENT**

 

1.                                 **Obligors**

 

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

 

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

 

(c)                            A certified (*beglaubigt*) excerpt from the commercialregister (*Handelsregister*) of each Obligor incorporated in Germany of recent date not dated earlier than14 days prior to the OriginalFacility Agreement.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(h)                           A certificate of an authorised signatory of therelevant Obligor certifying that each copy document relating to it specified inthis Schedule 2 is correct, complete and in full force and effect as at a dateno earlier than the initial Utilisation Date.

 

2.                                 **Legal opinions**

 

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

 

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

 

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

 

5

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3.                                 **Other documents and evidence**

 

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

 

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

 

6

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**SCHEDULE 3**

** **

**FORM OF AMENDED AGREEMENT**

 

7

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** **

**FINAL VERSION**

 

 

*€330,000,000*

 

FACILITY AGREEMENT

 

Dated 17 June 2008as amended and restated on    August 2008

 

 

for

* *

* *

*DEUKALIONEINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS - GmbH*

 

 

arranged by

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

 

 

with

* *

* *

*MERCHANTBANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)*

acting as Agent

 

and

* *

*MERCHANTBANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)*

acting as Security Agent

 

and

* *

*MERCHANTBANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)*

acting as Issuing Bank

 

 

Ref: NHAX/GEM

 

Linklaters LLP

 

8

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**CONTENTS**

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

 

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| **SECTION 9**                |                                                    |   |
|-----------------------------------|---------------------------------------------------------|--------|
| **CHANGES TO PARTIES**            |                                                    |   |
| 27.                               | Changes to the Lenders                                  |   | 98 |
| 28.                               | Changes to the Obligors                                 |   | 101 |
| **SECTION 10**               |                                                    |   |
| **THE FINANCE PARTIES**           |                                                    |   |
| 29.                               | Role of the Agent, the  Security Agent and the Arranger |   | 105 |
| 30.                               | Parallel Debt                                           |   | 110 |
| 31.                               | Conduct of business by the  Finance Parties             |   | 111 |
| 32.                               | Sharing among the Finance  Parties                      |   | 111 |
| **SECTION 11**               |                                                    |   |
| **ADMINISTRATION**                |                                                    |   |
| 33.                               | Payment mechanics                                       |   | 114 |
| 34.                               | Set-off                                                 |   | 117 |
| 35.                               | Notices                                                 |   | 117 |
| 36.                               | Calculations and  certificates                          |   | 119 |
| 37.                               | Partial invalidity                                      |   | 119 |
| 38.                               | Remedies and waivers                                    |   | 119 |
| 39.                               | Amendments and waivers                                  |   | 119 |
| 40.                               | Counterparts                                            |   | 120 |
| **SECTION 12**               |                                                    |   |
| **GOVERNING LAW AND ENFORCEMENT** |                                                    |   |
| 41.                               | Governing law                                           |   | 121 |
| 42.                               | Enforcement                                             |   | 121 |

 

**THE SCHEDULES**

 
| **SCHEDULE**                                        | ** ** | **PAGE**   |
|-----------------------------------------------------|------------|------------|
| ** **                                          | ** ** | ** ** |
| **Schedule 1** The Original Parties                 |       | 122        |
| **Schedule 2** Conditions precedent                 |       | 124        |
| **Schedule 3** Requests                             |       | 129        |
| **Schedule 4** Mandatory Cost formulae              |       | 133        |
| **Schedule 5** Form of Transfer Certificate    |       | 136        |
| **Schedule 6** Form of Accession Letter        |       | 138        |
| **Schedule 7** Security Agency Provisions           |       | 139        |
| **Schedule 8** Form of Compliance  Certificate |       | 144        |
| **Schedule 9** Existing Security                    |       | 146        |
| **Schedule 10** Timetables                          |       | 148        |
| **Schedule 11** Form of Letter of Credit       |       | 151        |
| **Schedule 12** Form of Bank Guarantee         |       | 155        |
| **Schedule  13** Form of Resignation Letter    |       | 158        |

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

IT IS AGREED as follows:

 

**SECTION 1**

 

**INTERPRETATION**

 

8.           **Definitionsand interpretation**

 

8.1        **Definitions**

 

In this Agreement:

 

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

 

“**AccessionLetter**” means a document substantially in the form set out inSchedule 9 (*Form of Accession Letter*).

 

“**AdditionalBorrower**” means a company which becomes an Additional Borrower inaccordance with Clause 35 (*Changes to theObligors*).

 

“**AdditionalCost Rate**” has the meaning given to it in Schedule 7 (*Mandatory Cost**formulae*).

 

1

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“**AdditionalGuarantor**” means a company which becomes an Additional Guarantor inaccordance with Clause 35 (*Changes to theObligors*).

 

“**AdditionalObligor**” means an Additional Borrower or an Additional Guarantor.

 

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

 

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

 

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

 

“**Ancillary Facility**” meansan ancillary facility made available by an Ancillary Lender in accordance withClause 9 (*Ancillary Facilities*).

 

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

 

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

 

“**Ancillary Lender**” means aLender which agrees to make available an Ancillary Facility in accordance withClause 16 (*Ancillary Facilities*).

 

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

 

(a)           the maximum potentialliability under all guarantees, bonds and letters of credit issued under thatAncillary Facility; and

 

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

 

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

 

For the purposes of this definition:

 

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

 

(ii)            in relation to anyutilisation not denominated in the Base Currency, the equivalent (calculated asspecified in the relevant Ancillary Facility Document or, if not so specified,as the relevant Ancillary Lender may specify, in each case in accordance withits usual practice at that time for calculating that equivalent (actingreasonably 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 the Company and the Agent or otherwise in form andsubstance satisfactory to the Agent (acting reasonably).

 

“**Applicable AccountingPrinciples**” means GAAP and, in the case of the Company, practicesand financial reference periods used in the preparation of the Base Case.

 

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

 

“**Availability Period**” means:

 

(a)           in relation to Facility A, the period from and including the date 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, in relation to an Ancillary Facility, an Ancillary Lender’s AncillaryCommitment less the Ancillary Outstandings in relation to that AncillaryFacility.

 

“**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 Ancillary Facility that is due to bemade available on or before the proposed Utilisation Date of Facility B,

 

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

 

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

 

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

 

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

 

“**BaseCurrency**” or “€” means euros.

 

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“**BaseCurrency Amount**” means:

 

(a)           in relation to a Utilisation, the amount specified inthe Utilisation Request delivered by a Borrower for that Utilisation (or, ifthe amount requested is not denominated in the Base Currency, that amountconverted into the Base Currency at the Agent’s Spot Rate of Exchange on thedate which is three Business Days before the Utilisation Date or, if later, onthe date the Agent receives the Utilisation Request and, in the case of aLetter of Credit or Bank Guarantee, as adjusted under Clause 13.8 (*Revaluation of Letters of Credit and Bank Guarantees*));

 

(b)           in relation to an AncillaryCommitment, the amount specified in the notice delivered to the Agent by theCompany pursuant to paragraph (a) of Clause 16.3 (*Request for Ancillary Facilities*),

 

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

 

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

 

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

 

(a)           the interest (excluding Mandatory Costs and the Margin) which a 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 a Saturday or Sunday) on which banks are open forgeneral business in Frankfurt, Helsinki, London and Stockholm, and (in relationto any date for payment in or purchase of euro) which is a TARGET Day and (inrelation to any date for payment or purchase of a currency other than euro) theprincipal financial centre of the country of that currency.

 

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

 

“**Cash**” means any creditbalance on any deposit, savings, current or other account, and any cash inhand, of any member of the Group which is:

 

(a)           freely withdrawable on demand;

 

(b)           not subject to any Security or Quasi Security (otherthan pursuant to any Security Document or any Permitted Security constituted byeither a netting or set-off arrangement entered into by members of the Group inthe ordinary course of their banking arrangements or a lien arising under thegeneral terms and conditions of banks 

 

4

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

 

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

 

(d)           capable of being remitted to an Obligor.

 

“**Cash Equivalent Investments**” means:

 

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

 

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

 

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

 

in each case not subject to any Security or Quasi Security (other thanpursuant to any Security Document or any Permitted Security constituted by a lien arising under the general terms and conditions ofbanks or Sparkassen (*AllgemeineGeschäftsbedingungen der Banken oder Sparkassen*) with whom anymember of the Group maintains its banking arrangements), denominated and payable in freely transferable and freely convertiblecurrency and the proceeds of which are capable of being remitted to an Obligor.

 

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

 

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

 

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

 

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

 

“**ComplianceCertificate**” means a certificate substantially in the form set outin Schedule 11 (*Form of ComplianceCertificate*).

 

“**ConfidentialityUndertaking**” means a confidentiality undertaking substantially in arecommended form of the LMA or in any other form agreed between the Company andthe Agent.

 

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

 

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

 

“**Debt**” has themeaning given to it in Clause 31 (*Financial covenants*).

 

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

 

5

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

 

“**DisruptionEvent**” means either or both of:

 

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

 

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

 

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

 

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

 

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

 

“**EBITDA**”has the meaning given to it in Clause 31 (*Financialcovenants*).

 

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

 

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

 

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

 

(c)                                   land (including land under water).

 

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

 

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

 

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

 

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

 

“**EnvironmentalLicence**” means any Authorisation required at any time underEnvironmental Law.

 

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

 

(a)                                  the applicable Screen Rate; or

 

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

 

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

 

as of the Specified Time on the Quotation Dayfor the offering of deposits in euro for a period comparable to the InterestPeriod of the relevant Loan.

 

“**Event ofDefault**” means any event or circumstance specified as such in Clause33 (*Events of Default*).

 

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

 

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

 

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

 

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

 

“**Facility A Commitment**” means:

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Facility B Commitment**” means:

 

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

 

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

 

to the extent not cancelled, reduced ortransferred by it under this Agreement (including a reduction pursuant toClause 16 (*Ancillary Facilities*)).

 

7

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

 

“**Facility BUtilisation**” means a Facility B Loan, a Letter of Credit or a BankGuarantee.

 

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

 

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

 

“**FinanceDocument**” means this Agreement, the Subordination Agreement, any FeeLetter, any Accession Letter, any Security Document, any Ancillary FacilityDocument and any other document designated as such by the Agent and theCompany.

 

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

 

“**FinanceParty**” means the Agent, an Ancillary Lender, the Security Agent, theArranger, the Issuing Bank or a Lender.

 

“**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 acceptancecredit facility or dematerialised equivalent;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

8

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“**GAAP**”means generally accepted accounting principles, standards and practices in thejurisdiction of incorporation of the relevant member of the Group, includingIFRS.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

9

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(g)                                   any other Security Document requested by the SecurityAgent in accordance 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 or an Additional Guarantor.

 

“**HazardousSubstance**” means any waste, pollutant, contaminant or othersubstance (including any liquid, solid, gas, ion, living organism or noise)that may be harmful to human health or other life or the Environment or anuisance to any person.

 

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

 

“**HoldingCompany**” means, in relation to a company or corporation, any othercompany or corporation in respect of which it is a Subsidiary.

 

“**IFRS**”means international accounting standards within the meaning of the IASRegulation 1606/2002 to the extent applicable to the relevant financialstatements.

 

“**InformationMemorandum**” means the document in the form approved by the Companyconcerning the Group which, at the Company’s request and on its behalf, was preparedin relation to this transaction and distributed by the Arranger to selectedfinancial institutions before the date of this Agreement.

 

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

 

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

 

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

 

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

 

10

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

 

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

 

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

 

“**JV Document**”means:

 

(i)                                      the Shareholders’ and Joint Venture Agreement regarding the 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 bank guarantee granted by Pohjola Bank in favour ofFinland’s environmental administration on 30 April 2008 at the request ofKemira Pigments.

 

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

 

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

 

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

 

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

 

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

 

“**Legal Reservations**” means:

 

(a)                                  the principle that equitable remedies may be granted or refused at 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 Relevant Jurisdiction;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 otherentity which has become a Party in accordance with Clause 34 (*Changes to the Lenders*),

 

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

 

“**Letter ofCredit**” means a letter of credit, substantially in the form set outin Schedule 14 (*Form of Letter ofCredit*) or in any other form requested by a Borrower and agreed bythe Agent and the Issuing Bank.

 

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

 

“**Liabilities**”means all present and future moneys, debts and liabilities due, owing orincurred by an Obligor to any Finance Party under or in connection with anyFinance Document (in each case, whether alone or jointly, or jointly andseverally, with any other person, whether actually or contingently and whetheras principal, surety or otherwise).

 

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

 

(a)                                  the applicable Screen Rate; or

 

(b)                                  (if no Screen Rate is available for the currency orInterest Period of that Loan) the arithmetic mean of the rates (rounded upwardsto four decimal places) as supplied to the Agent at its request quoted by theReference Banks to leading banks in the London interbank market,

 

as of the Specified Time on the Quotation Dayfor the offering of deposits in the currency of that Loan and for a periodcomparable to the Interest Period for that Loan.

 

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

 

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

 

“**Majority Lenders**” means:

 

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

 

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

 

For the purpose of this definition, theprovisions of Clause 9.5 (*Adjustments to Facility BCommitment*) shall not apply.

 

“**MandatoryCost**” means the percentage rate per annum calculated by the Agent inaccordance with Schedule 7 (*Mandatory Cost**formulae*).

 

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“**Margin**”means 3.00 per cent. per annum, subject to adjustment in accordance with Clause19.5 (*Adjustment of Margin*).

 

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

 

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

 

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

 

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

 

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

 

“**Material Subsidiary**” means:

 

(a)                                  a Subsidiary of the Company listed in the list of Material Subsidiariesprovided to the Agent under Clause 11.1 (*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 of this definition:

 

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

 

(ii)                                   if a Subsidiary is acquired by any member of the Group after the end 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 BusinessDay, that period shall end on the next Business Day in that calendar month inwhich that period is to end if there is one, or if there is not, on theimmediately preceding Business Day; and

 

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

 

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

 

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

 

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

 

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

 

(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 to it in Clause 31 (*Financial covenants*).

 

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

 

“**OptionalCurrency**” means a currency (other than the Base Currency) whichcomplies with the conditions set out in Clause 11.3 (*Conditions relating to Optional Currencies*).

 

“**Original Financial Statements**” means:

 

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

 

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

 

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

 

“**OriginalObligor**” means an Original Borrower or an Original Guarantor.

 

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

 

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“**ParticipatingMember State**” means any member state of the European Communitiesthat adopts or has adopted the euro as its lawful currency in accordance withlegislation of the European Community relating to Economic and Monetary Union.

 

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

 

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

 

“**Perfection Requirements**”means the making of the appropriate registrations, filings or notifications ofor pursuant to the 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 is continuing on the closing date for thatacquisition or would occur as a result of that acquisition;

 

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

 

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

 

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

 

(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 at thedate 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 32.22 (*Guaranteesand Security*) based on calculations for the Relevant Period referredto in paragraph (vi) below if the relevant tests were recalculated (A) consolidatingthe financial statements of the company to be acquired (consolidated if thatcompany has Subsidiaries) for that Relevant Period with those of the Group on apro forma basis and (B) as if the consideration for the proposedacquisition had been paid at the start of that Relevant Period, and to theextent lawful, valid and effective Security, in form and substance satisfactoryto the Security Agent, is given in favour of the Security Agent for the benefitof the Finance Parties over all the shares and material assets of the acquiredcompany upon or immediately following its acquisition;

 

(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) of Clause 31.1 (*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(consolidated if that company has Subsidiaries) for that Relevant Period withthose of the Group on a pro forma basis and taking into account reasonablesynergies as confirmed by the Company’s auditors (ii) as if theconsideration for the proposed acquisition had been paid at the start of thatRelevant Period; and

 

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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 Clause 32.23(*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**” meansa 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,transfer or disposal, are not required for the efficient operation of itsbusiness;

 

(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 SecurityAgent, acting reasonably, is satisfied that the Finance Parties will enjoy thesame or equivalent 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 further thatsuch sale, lease, transfer or disposal is on terms not less advantageous to therelevant 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 or (in the amount of up to€2,900,000 (in accordance with step 18 of the Structuring Report) pluscapitalised interest at a rate not exceeding the interest rate payable underthis Agreement in respect of a Facility A Loan in respect of the same periodplus 5 per cent. per annum) iSiltec Innovative Silicon Technologies GmbH (to berenamed Sachtleben Wasserchemie GmbH), which from the date of the firstUtilisation of Facility A is subordinated under the Subordination Agreement(including Financial Indebtedness arising pursuant to any Shareholder Loan) orwhich is otherwise subordinated on terms acceptable to the Majority Lenders(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;

 

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(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 its maturitydate extended in contemplation of, or since, that acquisition, and outstandingonly for a period of three months following the date of acquisition;

 

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

 

(k)                                  the Reborrowing Loan; or

 

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

 

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(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;

 

(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 (k) of the definition of Permitted Loan, at any timeexceed €2,000,000 (or its equivalent in another currency or currencies).

 

“**Permitted HedgingTransaction**” 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 Joint Venture 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, 

 

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Security or Quasi Securityfor the obligations of, or the incurring of any other liability to, the JointVenture;

 

(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 

 

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

 

(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)                                     the US JV Loan; or

 

(k)                                  any loan, credit or other arrangement having a similar effect notfalling within paragraphs (a) to (j), 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 extent the principal amountsecured by that Security exceeds the amount stated in that Schedule;

 

(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 theacquisition of that asset by a member of the Group;

 

(ii)                               the principal amount secured has not been increased in contemplation ofor since the acquisition of that asset by a member of the Group; and

 

(iii)                            the Security or Quasi Security is removed or discharged within threemonths 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 theacquisition of that company;

 

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

 

(iii)                            the Security or Quasi Security is removed or discharged within threemonths 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 Geschäftsbedingungen der Banken oderSparkassen*) with whom any member of the Group maintains its bankingarrangements;

 

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

 

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

 

“**Permitted Transaction**” means:

 

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

 

(b)                                  the solvent liquidation or reorganisation of any member of the 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

 

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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 areretained by the surviving entity, being one of them;

 

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

 

(iii)                            the Agent and theSecurity Agent are given ten Business Days’ notice by the Company of thatproposed merger and the Security Agent, acting reasonably, is satisfied thatthe Finance Parties will enjoy the same or equivalent Security over the sameassets 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 DueDiligence Report**” means the report prepared byPricewaterhouseCoopers Aktiengesellschaft Wirtschaftsprüfungsgesellschaft inthe Agreed Form.

 

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

 

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

 

“**Quasi Security**” means a transaction under which anymember of the Group will:

 

(a)                                  sell, transfer or otherwise dispose of any of its assets on termswhereby they are or may be leased to or re-acquired by any other member of theGroup;

 

(b)                                  sell, transfer or otherwise dispose of any of its receivables onrecourse terms;

 

(c)                                   enter into any arrangement under which money or the benefit of a bank orother account may be applied, set-off or made subject to a combination ofaccounts; or

 

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

 

in circumstances where the arrangement or transaction is entered intoprimarily as a method of raising Financial Indebtedness or of financing theacquisition 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 thefirst day of that period; or

 

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

 

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

 

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

 

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

 

“**RelevantInterbank Market**” means, in relation to euro, the European interbankmarketand,in relation to any other currency, the London interbank market.

 

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

 

(a)                                     its jurisdiction of incorporation;

 

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

 

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

 

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

 

“**RelevantPeriod**” means each period of four consecutive Financial Quartersending on a Quarter Date.

 

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

 

“**RepeatingRepresentations**” means each of the representations set out inClauses 29.1 (*Status*), 29.2 (*Binding obligations*), 29.3 (*Non-conflict with other obligations*), 29.4(*Power and authority*), 29.5 (*Validity**and admissibility inevidence*), 29.6 (*Governing lawand enforcement*), 29.9 (*Nodefault*), and paragraph (c) of 29.11 (*Financial statements*).

 

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

 

“**Rollover Loan**” means one or more Facility BLoans:

 

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

 

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

 

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

 

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

 

“**Sachtleben Chemie**”means Sachtleben Chemie GmbH, a limited liability company incorporated underthe laws of Germany (*Gesellschaft mitbeschränkter Haftung*) and registered 

 

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

 

“**Screen Rate**” means:

 

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

 

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

 

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

 

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

 

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

 

“**SecurityProperty**” has the meaning given to it in Schedule 10 (*Security agency provisions*).

 

“**SelectionNotice**” means a notice substantially in the form set out inPart II of Schedule 6 (*Requests*)given in accordance with Clause 20 (*InterestPeriods*) in relation to Facility A.

 

“**Shareholder Loan**”means:

 

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

 

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

 

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

 

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

 

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

 

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

 

“**SpecifiedTime**” means a time determined in accordance with Schedule 13 (*Timetables*).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Syndication**”means general syndication of the Facilities.

 

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

 

“**TARGET2**”means the Trans-European Automated Real-time Gross Settlement Express Transferpayment system which utilises a single shared platform and which was launchedon 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 or other charge or withholding of a similarnature (including any penalty or interest payable in connection with anyfailure to pay or any delay in paying any of the same).

 

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

 

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

 

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

 

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

 

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“**TotalCommitments**” means the aggregate of the Total Facility ACommitments, the Total Facility B Commitments and the Total AncillaryCommitments, being €330,000,000 at the date of this Agreement.

 

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

 

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

 

“**TransferCertificate**” means a certificate substantially in the form set outin Schedule 8 (*Form of TransferCertificate*) or any other form agreed between the Agent and theCompany.

 

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

 

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

 

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

 

“**Unpaid Sum**”means any sum due and payable but unpaid by an Obligor under the FinanceDocuments.

 

“**US JV Loan**”means:

 

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

 

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

 

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

 

“**UtilisationDate**” means the date on which a Utilisation is made.

 

“**UtilisationRequest**” means a notice substantially in the form set out inPart I, or (in relation to a letter of credit or bank guarantee) a noticesubstantially in the form set out in Part III of Schedule 6 (*Requests*).

 

“**VAT**”means value added tax as provided for in the Value Added Tax Act 1994 and anyother tax of a similar nature.

 

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

 

8.2                           **Construction**

 

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

 

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

 

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

 

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

 

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

 

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

 

(B)                            a Borrower procuring that a bank guarantee be 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 orthe addition of any new facility under that Finance Document or other agreementor instrument;

 

(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;

 

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

 

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(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,

 

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

 

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

 

(ix)                                a provision of law is a reference to that provision as amended 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 Finance Documentor in any notice given under or in connection with any Finance Document has thesame meaning in that Finance Document or notice as in this Agreement.

 

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

 

8.3                           **ThirdParty Rights**

 

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

 

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**SECTION 2**

 

**TheFacilities**

 

9.                                 **TheFacilities**

 

9.1                           **TheFacilities**

 

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

 

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

 

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

 

9.2                           **FinanceParties’ 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.

 

10.                           **Purpose**

 

10.1                     **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.

 

10.2                     **Monitoring**

 

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

 

11.                           **Conditionsof Utilisation**

 

11.1                     **Initialconditions precedent**

 

No Borrower may deliver a Utilisation Requestunless the Agent has received all of the documents and other evidence listed inPart I of Schedule 5 (*Conditionsprecedent*) in form and 

 

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

 

11.2                     **Furtherconditions precedent**

 

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

 

(i)                                      until delivery of the Compliance Certificate relating to the 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) EBITDA for the 12 month period ending on the most recent month endor, if the Utilisation Request is delivered within 7 Business Days of the startof a month, for the 12 month period ending on the next-to-last month end doesnot exceed 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.

 

11.3                     **Conditionsrelating 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.

 

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11.4                     **Maximumnumber of Utilisations**

 

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

 

(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 15.2 (*Unavailability of a currency*) shall not betaken into account in this Clause 11.4.

 

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**SECTION 3**

 

**UTILISATION**

 

12.                           **Utilisation- Loans**

 

12.1                     **Deliveryof a Utilisation Request**

 

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

 

12.2                     **Completionof 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 AvailabilityPeriod applicable to that Facility;

 

(iv)                               the currency and amount of the Utilisation comply with Clause 12.3 (*Currency and amount*);

 

(v)                                  the proposed Interest Period complies with Clause 20 (*Interest Periods*); and

 

(vi)                               it specifies the account and bank (which must be in the principalfinancial centre of the country of the currency of the Utilisation or, in thecase of euro, the principal financial centre of a Participating Member State inwhich banks are open for general business on that day or London) to which theproceeds of the Utilisation are to be credited.

 

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

 

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

 

(ii)                                   if the currency selected is US dollars, a minimum of $5,000,000 (andintegral multiples of $1,000,000 thereafter) or, if less, the AvailableFacility;

 

(iii)                              if the currency selected is any other Optional Currency, the minimumamount (and, if required, integral multiple) specified by the Agent pursuant toparagraph (b)(ii) of Clause 11.3 (*Conditionsrelating to Optional Currencies*) or, if less, the AvailableFacility; and

 

(iv)                             in any event such that its Base Currency Amount is less than or equal tothe Available Facility; and

 

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

 

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

 
| **Borrower**      | ** ** | **Aggregate amount of Facility A Loans (€)** | ** ** |
|-------------------|------------|---------------------------------------------------------------------------------|------------|
| Sachtleben Chemie |       | 152,500,000                                                                     |       |
| Kemira Pigments   |       | 53,800,000                                                                      |       |
| Finnish HoldCo    |       | 43,700,000                                                                      |       |

 

unless set out otherwise in the StructuringReport and agreed with the Agent.

 

12.4                     **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.

 

12.5                     **Cancellationof 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.

 

13.                           **Utilisation- Letters of Credit and Bank Guarantees**

 

13.1                     **General**

 

(a)                            In this Clause 13 and Clause 14 (*Lettersof Credit and Bank Guarantees*):

 

(i)                                      “**Approved Beneficiary**” means abeneficiary 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 13.7 (*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.

 

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(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;

 

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

 

(d)                           In determining the amount of the Available Facility and a Lender’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.

 

13.2                     **FacilityB**

 

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

 

13.3                     **Deliveryof a Utilisation Request for Letters of Credit or Bank Guarantees**

 

A Borrower may request a Letter of Credit orBank Guarantee to be issued by delivery to the Agent of a duly completedUtilisation Request substantially in the form of Part III of Schedule 6 (*Utilisation Request - Letters of Credit and BankGuarantees*) not later than the Specified Time.

 

13.4                     **Completionof a Utilisation Request for Letters of Credit and Bank Guarantees**

 

Each Utilisation Request for a Letter of Creditor Bank Guarantee is irrevocable and will not be regarded as having been dulycompleted 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 12.3 (*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 (for theavoidance of doubt, the relevant 

 

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Borrowershall provide cash cover from the Termination Date in accordance with Clause10.2 (*Repayment of Facility B Loans*));

 

(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.

 

13.5                     **Currencyand amount**

 

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

 

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

 

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

 

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

 

(iii)                              if the currency selected is any other Optional Currency, the minimumamount (and, if required, integral multiple) specified by the Agent pursuant toparagraph (b)(ii) of Clause 11.3 (*Conditionsrelating to Optional Currencies*) or, if less, the AvailableFacility,

 

or, if less, such amount as will result in the aggregate Base CurrencyAmounts of all outstanding Letters of Credit and all outstanding BankGuarantees not exceeding the Letter of Credit and Bank Guarantee Limit.

 

13.6                     **Issueof Letters of Credit or Bank Guarantees**

 

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

 

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

 

(i)                                      in the case of a Letter of Credit or Bank Guarantee renewed inaccordance with Clause 13.7 (*Renewal of aLetter of Credit or Bank Guarantee*), no Event of Default iscontinuing or would result from the proposed Utilisation and, in the case ofany other Utilisation, no Default is continuing or would result from theproposed Utilisation; and

 

(ii)                                   the Repeating Representations to be made by 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 requested Letterof Credit or Bank Guarantee and its participation in that Letter of Credit orBank Guarantee by the Specified Time.

 

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13.7                     **Renewalof 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 13.4 (*Completion of a Utilisation Request for Letters ofCredit**or Bank Guarantees*) shall notapply.

 

(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.

 

13.8                     **Revaluationof 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) above shows that the Base Currency Amount of such Letters of Credit orBank Guarantees exceeds an amount equal to 105 per cent. of the Total FacilityB Commitments; 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.

 

14.                           **Lettersof Credit and Bank Guarantees**

 

14.1                     **Immediatelypayable**

 

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

 

14.2                     **Assignmentsand 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.

 

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(b)                           If paragraph (a) and the conditions and procedure for transferspecified in Clause 34 (*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.

 

14.3                     **Feepayable in respect of Letters of Credit and Bank Guarantees**

 

(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 Bank Guaranteethen:

 

(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.

 

14.4                     **Claimsunder 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

 

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(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.

 

14.5                     **Indemnities**

 

(a)                            Each Borrower shall immediately on demand indemnify the Issuing Bankagainst any cost, loss or liability incurred by the Issuing Bank (otherwisethan by reason of the Issuing Bank’s gross negligence or wilful misconduct) inacting as the Issuing Bank under any Letter of Credit or Bank Guaranteerequested by that Borrower.

 

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

 

(c)                            If any Lender is not permitted (by its constitutional documents or anyapplicable law) to comply with paragraph (b) above), then that Lender willnot be obliged to comply with paragraph (b) and shall instead be deemed tohave taken, on the date the Letter of Credit or Bank Guarantee is issued (or iflater, on the date the Lender’s participation in the Letter of Credit or BankGuarantee is transferred or assigned to the Lender in accordance with the termsof this Agreement), an undivided interest and participation in the Letter ofCredit or Bank Guarantee in an amount equal to its Proportion of that Letter ofCredit or Bank Guarantee.  On receipt ofdemand from the Agent, that Lender shall pay to the Agent (for the account ofthe Issuing Bank) an amount equal to its Proportion of the amount demandedunder paragraph (b) above.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(v)                                any amendment (however fundamental) or replacement of a FinanceDocument, any Letter of Credit or Bank Guarantee or any other document orsecurity;

 

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

 

(vii)                          any insolvency or similar proceedings.

 

14.6                     **Rightsof contribution**

 

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

 

14.7                     **Roleof 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:

 

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(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.

 

14.8                     **Exclusionof liability**

 

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

 

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

 

14.9                     **Creditappraisal 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 36.15 (*Creditappraisal by the Lenders*).

 

14.10               **Addressfor 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.

 

14.11               **Amendmentsand 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.

 

15.                           **OptionalCurrencies**

 

15.1                     **Selectionof 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.

 

15.2                     **Unavailabilityof a currency**

 

If before the Specified Time on any QuotationDay:

 

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(a)                                   a Lender notifies the Agent that the Optional Currency requested is notreadily available to it in the amount required; or

 

(b)                                  a Lender notifies the Agent that compliance with its obligation toparticipate in a Loan in the proposed Optional Currency would contravene a lawor 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 15.2 will be required toparticipate in the Loan in the Base Currency (in an amount equal to thatLender’s proportion of the Base Currency Amount or, in respect of a RolloverLoan, an amount equal to that Lender’s proportion of the Base Currency Amountof the Rollover Loan that is due to be made) and its participation will betreated as a separate Loan denominated in the Base Currency during thatInterest Period.

 

16.                           **AncillaryFacilities**

 

16.1                     **Establishment of Ancillary Facilities**

 

One or more Ancillary Facilities may from time to time be established infavour of one or more Borrowers in accordance with this Clause 16 bydesignating all or part of the Facility B Commitment of a Lender as anAncillary Commitment.

 

16.2                     **Types of Ancillary Facility**

 

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

 

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

 

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

 

16.3                     **Request for Ancillary Facilities**

 

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

 

(b)                           An Ancillary Facility Request relating to a proposed Ancillary Facilitywill 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 16.2 (*Types ofAncillary Facility*));

 

(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 must fall on or beforethe Termination Date);

 

(vi)                               the amount of the Ancillary Commitment (which must be denominated in theBase Currency) which is to apply to that Ancillary Facility;

 

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

 

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

 

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

 

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

 

(i)                                    is readily available in the amount required and freely convertible intothe Base Currency in the Relevant Interbank Market on the date for utilisationof 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 an Ancillary FacilityRequest, notify each Lender of that Ancillary Facility Request.

 

16.4                     **Grant of Ancillary Facility**

 

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

 

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

 

(b)                                the proposed Ancillary Commitment under that Ancillary Facility willnot, when aggregated with the Ancillary Commitments under all other AncillaryFacilities in effect on that Commencement Date, exceed the Total AncillaryLimit; and

 

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

 

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

 

16.5                     **Adjustments to Facility B Commitment**

 

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

 

(b)                           If and to the extent that:

 

(i)                                    any Ancillary Facility expires, or is cancelled (in whole or in part) inaccordance with Clause 16.8 (*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),

 

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

 

16.6                     **Terms of Ancillary Facilities**

 

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

 

(i)                                    those terms shall be consistent with this Clause 16 and the details setout in the Ancillary Facility Request;

 

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

 

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

 

(iv)                             cancellation, termination or enforcement of the Ancillary Facility shallonly occur as described in Clause 16.8 (*Voluntarycancellation of Ancillary Facilities*), Clause 18  (*Prepaymentand cancellation*)**orClause 33.16 (*Acceleration*).

 

(b)                           Any material variation to any Ancillary Facility (including any proposedincrease or reduction in the Ancillary Commitment) shall be in accordance withand subject to this Clause 16.

 

(c)                            An amendment or waiver of any term of an Ancillary Facility shall notrequire the consent of any Finance Party other than the relevant AncillaryLender unless the amendment or waiver relates to a matter which would requirean amendment to this Agreement. In that case, the provisions of this Agreementrelating to amendments and waivers will apply.

 

(d)                           In the case of any inconsistency between any term of an AncillaryFacility and any term of this Agreement, this Agreement shall prevail.

 

16.7                     **Limits on Ancillary Facilities**

 

The Company shall ensure that:

 

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

 

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

 

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

 

16.8                     **Voluntary cancellation of Ancillary Facilities**

 

The Company may, if it gives the Agent and the relevant Ancillary Lendernot less than 5 Business Days’ prior notice, cancel the whole or any part ofthe Ancillary Commitment under an Ancillary Facility.

 

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16.9                     **Notice in respect of Ancillary Facilities**

 

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

 

(i)                                    the establishment by it of any Ancillary Facility and the applicableCommencement 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 to time.

 

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

 

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

 

16.10               **Ancillary Outstandings**

 

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

 

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**SECTION 4**

 

**REPAYMENT,PREPAYMENT AND CANCELLATION**

 

17.                           **Repayment**

 

17.1                     **Repaymentof Facility A Loans**

 

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

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

 

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

 

(c)                            If, in relation to a Facility A Repayment Date, the aggregate amount ofthe Facility A Loans made to the Borrowers exceeds the Facility A RepaymentInstalment to be repaid by the Borrowers, the Company may, if it gives theAgent not less than five Business Days’ prior notice, select which of thoseFacility A Loans will be wholly or partially repaid so that the Facility ARepayment Instalment is repaid on the relevant Facility A Repayment Date infull. 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 which is repaid.

 

17.2                     **Repaymentof Facility B Loans**

 

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

 

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

 

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

 

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17.3       **Repayment of Ancillary Facilities**

 

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

 

18.         **Prepaymentand cancellation**

 

18.1       **Illegalityin relation to a Lender or the Issuing Bank**

 

If it becomesunlawful in any applicable jurisdiction for a Lender or the Issuing Bank toperform any of its obligations as contemplated by this Agreement or to fund ormaintain its participation in any Utilisation or to issue or leave outstandingany Letter of Credit or Bank Guarantee:

 

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

 

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

 

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

 

(d)           if the unlawfulness relates to the Issuing Bank and noother Lender hasagreed to be an Issuing Bank pursuant to the terms of this Agreement, upon theAgent notifying the Company, Facility B shall cease to be available for theissue of Letters of Credit or Bank Guarantees and the Company shall procurethat each of the relevant Borrowers shall use its best endeavours to procurethe release of each Letter of Credit or Bank Guarantee issued by that IssuingBank and outstanding at such time.

 

 

18.2       **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 AncillaryLender shall promptly notify the Agent upon becoming aware of that event;

 

(b)           upon the Agentnotifying the Company:

 

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

 

(ii)          each Borrowershall use its best endeavours to procure the release of any outstanding letterof credit, guarantee or other instrument issued by that Ancillary Lender inrespect of that Borrower under each Ancillary Facility made available by thatAncillary Lender and repay all amounts, if any, payable under each suchAncillary Facility on the earlier of the next date on which any payment orrepayment is due under that facility occurring after the Agent has notified theCompany or the date specified by the Ancillary Lender in the notice deliveredto 

 

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the Agent (beingno earlier than the last day of any applicable grace period permitted by law).

 

18.3       **Change of control**

 

(a)         If a Change of Control Event occurs:

 

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

 

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

 

(iii)           a Lender shall not be obliged to fund a Utilisation (exceptfor a Rollover 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 within30 days of the Company notifying the Agent of the occurrence of a Change ofControl Event, the Agent shall promptly notify the Company of the notificationby that Lender and the Company and that Lender shall negotiate in good faiththe continuation of the participation of the respective Lender in theFacilities. If no agreement is reached within 30 days of the Lender notifyingthe Agent, the Agent shall, by not less than 10 days’ notice to the Company(the date specified in such notice being the “**RelevantLender Cancellation Date**”), cancel the Commitment of that Lender anddeclare the participation of that Lender in all outstanding Utilisations,together with accrued interest, and all other amounts accrued under the FinanceDocuments immediately due and payable, whereupon the Commitment of that Lenderwill be cancelled and all such outstanding amounts will become immediately dueand payable and declare that cash cover in respect of that Lender’sparticipation in each Letter of Credit or Bank Guarantee is immediately due andpayable whereupon it shall become immediately due and payable **provided that** the Company may, by written notice to theAgent and such Lender given in the period from the date such Lender notifiesthe Agent following the occurrence of a Change of Control Event to the date 3Business Days prior to the Relevant Lender Cancellation Date, replace suchLender by requiring such Lender to (and such Lender shall) transfer pursuant toClause 26 (*Changes to the Lenders*)all (and not part only) of its rights and obligations under this Agreement to aLender or other bank, financial institution, trust, fund or other entity (a “**Replacement Lender**”) selected by theCompany, and which is acceptable to the Agent (acting reasonably) and (in thecase of any transfer of a Facility B Commitment) the Issuing Bank, whichconfirms its willingness to assume and does assume all the obligations of thetransferring Lender (including the assumption of the transferring Lender’sparticipations on the same basis as the transferring Lender) for a purchaseprice in cash payable at the time of transfer equal to the outstandingprincipal amount of such Lender’s participation in the outstanding Utilisationsand all accrued interest and/or Letter of Credit and/or Bank Guarantee fees,Break Costs and other amounts payable in relation thereto under the FinanceDocuments. The replacement of a Lender pursuant to this Clause shall be subjectto the following conditions:

 

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

 

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(B)          neither the Agentnor the Lender shall have any obligation to the Company to find a ReplacementLender;

 

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

 

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

 

(b)         For the purpose of paragraph (a) above “**Change ofControl 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, directlyor indirectly, the wholly owned subsidiary of Rockwood Specialties Group Inc.

 

18.4       **Voluntary cancellation**

 

The Company may, ifit gives the Agent not less than 5 Business Days’ (or such shorter period asthe Majority Lenders may agree) prior notice, cancel the whole or any part(being a minimum amount of €5,000,000) of an Available Facility. Anycancellation under this Clause 18.4 shall reduce the Commitments of the Lendersrateably under that Facility.

 

18.5       **Mandatory prepayment - Net Sale Proceeds**

 

(a)         The Company shall ensure that an amount equal to all Net Sale Proceedsis applied in accordance with Clause 18.6 (*Application of Net SaleProceeds prepayment*) below.

 

(b)         Paragraph (a) above does not apply to any Net Sale Proceeds to theextent that:

 

(i)             such Net SaleProceeds are intended to be applied within twelve months of receipt towards thepurchase of other similar assets for use in the Group’s business; or

 

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

 

18.6       **Application of Net Sale Proceedsprepayment**

 

(a)         In this Clause 18.6, “**Receipt Date**”means the date on which any Net Sale Proceeds to which paragraph (a) ofClause 18.5 (*Mandatory prepayment — Net Sale Proceeds*)applies (the “**Relevant Net Sale Proceeds**) havebeen received by any member of the Group.

 

(b)         Within five Business Days after a Receipt Date, the Company shall notifythe Agent of the Receipt Date and the amount in the Base Currency (the “**Euro Net Sale Proceeds Amount**”) equal or equivalent to thoseRelevant Net Sale Proceeds.

 

(c)         On receipt of that notice by the Agent, the Facility A Commitment shallbe reduced by an aggregate amount equal to the Euro Net Sale Proceeds Amount.

 

(d)         The Company shall ensure that the Facility A Loans are prepaid (in eachcase, on the earlier of 3 Months after the Receipt Date and the expiry of theirInterest Periods current when the Agent 

 

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receives the relevant notice pursuant to paragraph (b) above) untilFacility A Loans equal to or greater than the Euro Net Sale Proceeds Amounthave been prepaid.

 

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

 

(f)          Any prepayment under this Clause 18.6 shall satisfy the obligations under Clause 17.1 (*Repayment of Facility A Loans*) in inversechronological order.

 

18.7       **Mandatory prepayment - InsuranceProceeds**

 

(a)         The Company shall ensure that an amount equal to all Insurance Proceedsis applied in accordance with Clause 18.8 (*Application of InsuranceProceeds prepayment*) below.

 

(b)         Paragraph (a) above does not apply to any Insurance Proceeds to theextent that:

 

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

 

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

 

18.8       **Application of Insurance Proceedsprepayment**

 

(a)         In this Clause 18.8, “**Receipt Date**”means the date on which any Insurance Proceeds to which paragraph (a) ofClause 11.7 (*Mandatory prepayment - Insurance Proceeds*)applies (the “**Relevant Insurance Proceeds**”) havebeen received by any member of the Group.

 

(b)         Within five Business Days after a Receipt Date, the Company shall notifythe Agent of the Receipt Date and the amount in the Base Currency (the “**Euro Insurance Proceeds Amount**”) equal or equivalent tothose Relevant Insurance Proceeds.

 

(c)         On receipt of that notice by the Agent, the Facility A Commitment shallbe reduced by an aggregate amount equal to the Euro Insurance Proceeds Amount.

 

(d)         The Company shall ensure that the Facility A Loans are prepaid (in eachcase, on the earlier of 3 Months after the Receipt Date and the expiry of theirInterest Periods current when the Agent receives the relevant notice pursuantto paragraph (b) above) until Facility A Loans equal to or greater thanthe Euro Insurance Proceeds Amount have been prepaid.

 

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

 

(f)          Any prepayment under this Clause 11.8 shall satisfy the obligationsunder Clause 17.1 (*Repayment of Facility ALoans*) in inverse chronological order.

 

18.9       **Excluded proceeds**

 

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

 

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

 

18.10     **Restriction on upstream payments**

 

(a)         If there is a requirement to make a mandatory prepayment pursuant toClause 18.5 (*Mandatory prepayment - Net Sale Proceeds*)or Clause 18.7 (*Mandatory prepayment - Insurance Proceeds*)and, in order to effect such prepayment, moneys need to be upstreamed orotherwise transferred from one member of the Group to another member of theGroup and:

 

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

 

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

 

then, until such timeas that the impediment to prepayment no longer applies, such prepayment shallbe made in an amount equal to the aggregate of the amount the relevant Borroweris legally able to pay and the amount the relevant Borrower is able to procurefrom other resources available to the Group.

 

(b)         The Company shall continue to use its reasonable endeavours to procurethat the prepayment which, but for this Clause 18.10, would have been due ismade.  If at any time the restrictionsset out in paragraph (a) above are removed, any relevant proceeds will beapplied in prepayment of the Facilities on the earlier of 3 Months after therestrictions are removed and the expiry of their Interest Periods current whenthe restrictions are removed and otherwise in accordance with Clauses 18.5 (*Mandatory prepayment - Net Sale Proceeds*) to 18.9 (*Excluded proceeds*).

 

18.11     **Voluntary prepayment of FacilityA Loans**

 

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

 

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

 

(c)         Any prepayment under this Clause 18.11 shall satisfy the obligationsunder Clause 17.1 (*Repayment of Facility ALoans*) in inverse chronological order.

 

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18.12     **Voluntaryprepayment of Facility B Utilisations**

 

The Borrower to whicha Facility B Utilisation has been made may, if it gives the Agent not less than5 Business Days’ (or such shorter period as the Majority Lenders may agree)prior notice, prepay the whole or any part of a Facility B Utilisation, but ifin part, being an amount that:

 

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

 

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

 

18.13     **Right ofrepayment and cancellation in relation to a single Lender, Ancillary Lender orIssuing 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 23.2 (*Tax gross-up*); or

 

(ii)            any Lender or Ancillary Lender or the Issuing Bankclaims indemnification from the Company under Clause 23.3 (*Tax indemnity*) or Clause 24 (*Increased costs*),

 

the Company may,whilst the circumstance giving rise to the requirement for gross-up orindemnification continues, give the Agent notice:

 

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

 

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

 

(iii)           (if such circumstances relate to an Ancillary Lender)of cancellation of that Ancillary Lender’s Ancillary Commitment and its intentionto procure the repayment of the utilisations of any Ancillary Facility grantedby that Ancillary Lender.

 

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

 

(c)         On the last day of each Interest Period which ends after the Company hasgiven notice under paragraph (a) above (or, if earlier, the date specifiedby the Company in that notice), each Borrower to which a Utilisation orutilisation of an Ancillary Facility is outstanding shall repay that Lender’sparticipation in that Utilisation or utilisation of an Ancillary Facilitygranted by that Ancillary Lender.

 

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18.14     **Restrictions**

 

(a)         Any notice of cancellation or prepayment given by any Party under thisClause 18 shall be irrevocable and, unless a contrary indication appears inthis Agreement, shall specify the date or dates upon which the relevant cancellationor prepayment is to be made and the amount of that cancellation or prepayment.

 

(b)         Any prepayment under this Agreement shall be made together with accruedinterest on the amount prepaid and, subject to any Break Costs, without premiumor penalty.

 

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

 

(d)         Unless a contrary indication appears in this Agreement, any part ofFacility B which is prepaid may be reborrowed in accordance with the terms ofthis Agreement.

 

(e)         The Borrowers shall not repay or prepay all or any part of theUtilisations or cancel all or any part of the Commitments except at the timesand in the manner expressly provided for in this Agreement.

 

(f)          No amount of the Total Commitments cancelled under this Agreement may besubsequently reinstated.

 

(g)         If the Agent receives a notice under this Clause 18 it shall promptlyforward a copy of that notice to either the Company or the affected Lender, asappropriate.

 

18.15     **Clean Down**

 

The Company shall:

 

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

 

(i)           all Facility BLoans; and

 

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

 

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

 

(b)           notify the Agentat least three Business Days before the start of any proposed Clean DownPeriod; and

 

(c)            ensure that notless than three Months shall elapse between two Clean Down Periods.

 

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**SECTION 5**

 

**COSTSOF UTILISATION**

 

19.         **Interest**

 

19.1       **Calculationof interest**

 

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

 

(a)            Margin;

 

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

 

(c)            Mandatory Cost, if any.

 

19.2       **Paymentof interest**

 

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

 

19.3       **Defaultinterest**

 

(a)         If an Obligor fails to pay any amount payable by it under a FinanceDocument on its due date, interest shall accrue on the overdue amount from thedue date up to the date of actual payment (both before and after judgment) at arate which, subject to paragraph (b) below, is the sum of 1 per cent. andthe rate which would have been payable if the overdue amount had, during theperiod of non-payment, constituted a Loan in the currency of the overdue amountfor successive Interest Periods, each of a duration selected by the Agent (actingreasonably).  Any interest accruing underthis Clause 19.3 shall be immediately payable by the Obligor on demand by theAgent.

 

(b)         If any overdue amount consists of all or part of a Loan which became dueon a day which was not the last day of an Interest Period relating to thatLoan:

 

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

 

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

 

(c)         Default interest (if unpaid) arising on an overdue amount will becompounded with the overdue amount at the end of each Interest Periodapplicable to that overdue amount but will remain immediately due and payable.

 

19.4       **Notification of rates of interest**

 

The Agent shallpromptly notify the Lenders and the relevant Borrower of the determination of arate of interest under this Agreement.

 

19.5       **Adjustment of Margin**

 

(a)         Subject to this Clause 19.5, the Margin applicable to each Utilisationshall be the rate per annum specified in the definition of Margin set out inClause 1.1 (*Definitions*)**adjusted by reference to 

 

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the ratio of NetDebt to EBITDA as shown in the then most recent Compliance Certificate (and thefinancial statements with which it is required by this Agreement to bedelivered) received by the Agent, to equal the rate per annum specifiedopposite the relevant range set out in the following table in which the ratioof Net Debt to EBITDA falls:

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

 

(b)         No adjustment shall be made to the Margin under paragraph (a) aboveuntil receipt by the Agent of the first Compliance Certificate (and thefinancial statements with which it is required by this Agreement to bedelivered) for the Relevant Period ending 31 December 2008.

 

(c)         Any adjustment to the Margin under paragraph (a) above shall takeeffect on the date (the “**Margin AdjustmentDate**”) falling on the first day of the Interest Period commencingafter receipt by the Agent of a Compliance Certificate (and the financial statementswith which it is required by this Agreement to be delivered) in accordance withClause 30.2 (*Compliance Certificate*).

 

(d)         If the Margin for a Utilisation is reduced for any period under thisClause 19.5 but the annual audited financial statements of the Group (and theCompliance Certificate with which they are required by this Agreement to bedelivered) subsequently received by the Agent do not confirm the basis for thatreduction, that reduction shall be reversed with retrospective effect. In thatevent, the Margin for that Utilisation shall be the rate per annum specifiedopposite the relevant range set out in the table above of the revised ratio ofNet Debt to EBITDA calculated using the figures in that Compliance Certificate.The Company shall promptly pay to the Agent any amount necessary to put theAgent and Lenders in the position they would have been in had the appropriaterate of the Margin applied during that period.

 

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(e)         If the annual audited financial statements of the Group (and theCompliance Certificate with which they are required by this Agreement to bedelivered) subsequently received by the Agent show that the Margin for anyUtilisation should have been reduced for any period, the next payments ofinterest falling due on the Utilisations shall be reduced to the extentnecessary to put the Obligors in the position they would have been in if theMargin had been reduced for that period.

 

(f)          While an Event of Default is continuing, the Margin applicable to eachUtilisation shall be the rate of 3.00per cent. per annum.

 

20.         **InterestPeriods**

 

20.1       **Selectionof Interest Periods**

 

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

 

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

 

(c)         If a Borrower (or the Company) fails to deliver a Selection Notice tothe Agent in accordance with paragraph (b) above, the relevant InterestPeriod will, subject to Clause 20.2 (*Changesto Interest Periods*),  be oneMonth.

 

(d)         Subject to this Clause 20, a Borrower (or the Company) may select anInterest Period of 1, 3 or 6 Months or any other period agreed between theCompany and the Agent (acting on the instructions of all the Lendersparticipating in the relevant Facility). In addition a Borrower (or the Companyon 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 Interest Period beginningbefore the Syndication Date, the Agent may shorten that Interest Period to aduration of one Month (or such shorter duration as may be desirable) to ensurethat the Interest Period ends on a date on which rights and obligations underthis Agreement are to be novated or assigned to persons becoming Parties as aresult of Syndication.

 

(f)          An Interest Period for a Loan shall not extend beyond the TerminationDate applicable to its Facility.

 

(g)         Each Interest Period for a Facility A Loan shall start on theUtilisation Date or (if already made) on the last day of its preceding InterestPeriod.

 

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

 

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20.2       **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 20.2, it shall promptly notify the Companyand the Lenders.

 

20.3       **Non-Business Days**

 

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

 

20.4       **Consolidation and division ofFacility A Loans**

 

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

 

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

 

(ii)            end on the same date; and

 

(iii)           are made to the same Borrower,

 

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

 

(b)         Subject to Clause 11.4 (*Maximum number of Utilisations*) and Clause 12.3 (*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.

 

21.         **Changesto the calculation of interest**

 

21.1       **Absence of quotations**

 

Subject to Clause 21.2 (*Market disruption*), if LIBOR or, ifapplicable, EURIBOR is to be determined by reference to the Reference Banks buta Reference Bank does not supply a quotation by the Specified Time on theQuotation Day, the applicable LIBOR or EURIBOR shall be determined on the basisof the quotations of the remaining Reference Banks.

 

21.2       **Market disruption**

 

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

 

(i)             the Margin;

 

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

 

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expresses as apercentage rate per annum the cost to that Lender of funding its participationin that Loan from whatever source it may reasonably select; and

 

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

 

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

 

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

 

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

 

21.3       **Alternative basis of interest orfunding**

 

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

 

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

 

21.4       **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.

 

22.         **Fees**

 

22.1       **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 relevantAvailability Period, on the last day of the Availability Period and, ifcancelled in full, on the cancelled amount of the relevant Lender’s Commitmentat the time the cancellation is effective.

 

22.2       **Arrangement fee**

 

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

 

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22.3       **Agency fee**

 

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

 

22.4       **Security Agency fee**

 

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

 

22.5       **Issuing Bank fee**

 

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

 

22.6       **Ancillary Facility fees**

 

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

 

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**SECTION 6**

 

**ADDITIONALPAYMENT OBLIGATIONS**

 

23.         **Tax grossup and indemnities**

 

23.1       **Definitions**

 

“**FinnishQualifying Lender**” means a Lender which is:

 

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

 

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

 

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

 

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

 

“**QualifyingLender**” means :

 

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

 

(A)         lending through a Facility Office in Germany;

 

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

 

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

 

(ii)            a Finnish Qualifying Lender; or

 

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

 

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

 

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

 

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

 

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

 

“**Tax Payment**”means either the increase in a payment made by an Obligor to a Finance Party underClause 23.2 (*Tax gross-up*) or a payment underClause 23.3 (*Tax indemnity*).

 

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

 

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

 

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

 

“**Treaty State**”means a jurisdiction having a double taxation agreement (a “**Treaty**”) with the Federal Republic of Germany or thejurisdiction of incorporation of the relevant Borrower which makes provisionfor full exemption for tax imposed by the Federal Republic of Germany or thejurisdiction of incorporation of the relevant Borrower on interest.

 

(b)         Unless a contrary indication appears, in this Clause 23a reference to “determines” or “determined” means a determination made in theabsolute discretion of the person making the determination.

 

23.2       **Tax gross-up**

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

23.3       **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 fact that a Facility is secured (directly or indirectly) by realestate located in Germany (*inländische Grundstücke*)or domestic rights treated as real property under German Civil Law (*inländische Rechte die den Vorschriften des Bürgerlichen Rechts überGrundstücke unterliegen*),

 

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

 

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

 

(A)         is compensated for by an increased payment under Clause23.2 (*Tax gross-up*); or

 

(B)          would have been compensated for by an increasedpayment under Clause 23.2 (*Tax gross-up*)but was not so compensated solely because one of the exclusions in paragraph (d) ofClause 23.2 (*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 23.3, notify the Agent.

 

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23.4       **Tax Credit**

 

If an Obligor makes aTax Payment 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,

 

the Finance Party shall pay an amount to theObligor which that Finance Party determines will leave it (after that payment)in the same after-Tax position as it would have been in had the Tax Payment notbeen required to be made by the Obligor.

 

23.5       **Stamp taxes**

 

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

 

23.6       **Value added tax**

 

(a)         All amounts set out, or expressed to be payable 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.

 

23.7       **German Earnings Stripping Rules**

 

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

 

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Business Tax Reform Act 2008 (*Unternehmensteuerreformgesetz* 2008, published in the FederalGazette, BGBI. I 2007, 1912 et seq.), with regard to the application of theequity escape clause, the Finance Parties shall, upon receipt of a request ofthe relevant Borrower (containing a detailed proposal for the requestedassistance) enter into good faith negotiations as to what extent it isreasonably practical for the Finance Parties to assist the Borrower in thisrespect. For the avoidance of doubt, no Finance Party shall be obliged torelease any Security, change this Agreement or disclose information which isconfidential under applicable statutory or contractual banking secrecy rules.

 

24.         **Increasedcosts**

 

24.1       **Increased costs**

 

(a)         Subject to Clause 24.3 (*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,

 

which is incurred or suffered by a FinanceParty or any of its Affiliates to the extent that it is attributable to thatFinance Party having entered into its Commitment or funding or performing itsobligations under any Finance Document.

 

24.2       **Increased cost claims**

 

(a)         A Finance Party intending to make a claim pursuant toClause 24.1 (*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.

 

24.3       **Exceptions**

 

(a)         Clause 24.1 (*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 23.3 (*Tax indemnity*) (or would have beencompensated for under Clause 23.3 (*Taxindemnity*) but was not so compensated solely because any of the exclusionsin paragraph (b) of Clause 23.3 (*Taxindemnity*) applied); or

 

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

 

(iv)          attributable to the wilful breach by the relevantFinance Party or its Affiliates of any law or regulation.

 

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(b)         In this Clause 24.3, a reference to a “Tax Deduction”has the same meaning given to the term in Clause 23.1 (*Definitions*).

 

25.         **Otherindemnities**

 

25.1       **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,

 

that Obligor shall as an independentobligation, within three Business Days of demand, indemnify each Finance Partyto whom that Sum is due against any cost, loss or liability arising out of oras a result of the conversion including any discrepancy between (A) therate of exchange used to convert that Sum from the First Currency into theSecond Currency and (B) the rate or rates of exchange available to thatperson 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.

 

25.2       **Other indemnities**

 

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

 

(a)            the occurrence of any Event of Default;

 

(b)           a failure by an Obligor to pay any amount due under aFinance Document on its due date, including without limitation, any cost, lossor liability arising as a result of Clause 39 (*Sharingamong the Finance Parties*);

 

(c)            funding, or making arrangements to fund, itsparticipation in a Utilisation requested by a Borrower in a Utilisation Requestbut not made by reason of the operation of any one or more of the provisions ofthis Agreement (other than by reason of default or negligence by that FinanceParty alone); or

 

(d)           a Utilisation (or part of a Utilisation) not beingprepaid in accordance with a notice of prepayment given by a Borrower or theCompany.

 

25.3       **Indemnity to the Agent and theSecurity Agent**

 

The Company shallpromptly indemnify the Agent and the Security Agent against any cost, loss orliability incurred by the Agent or the Security Agent (acting reasonably) as aresult 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.

 

26.         **Mitigation by the Lenders**

 

26.1       **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 18.1 (*Illegality**in relation to a Lender or the Issuing Bank*),Clause 11.2 (*Illegality in relation to an AncillaryLender*), Clause 23 (*Tax gross-upand indemnities*) or Clause 24 (*Increasedcosts*) including (but not limited to) transferring its rights andobligations under the Finance Documents to another Affiliate or FacilityOffice.

 

(b)         Paragraph (a) above does not in any way limit theobligations of any Obligor under the Finance Documents.

 

26.2       **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 26.1 (*Mitigation*).

 

(b)         A Finance Party is not obliged to take any steps underClause 26.1 (*Mitigation*) if, inthe opinion of that Finance Party (acting reasonably), to do so might beprejudicial to it.

 

27.         **Costs andexpenses**

 

27.1       **Transaction expenses**

 

The Company shallpromptly on demand pay the Agent, the Security Agent and the Arranger theamount of all costs and expenses (including legal fees) reasonably incurred byany of them in connection with the 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.

 

27.2       **Amendment costs**

 

If (a) an Obligor requests an amendment,waiver or consent or (b) an amendment is required pursuant to Clause 40.9(*Change of currency*), the Companyshall, within three Business Days of demand, reimburse the Agent and theSecurity Agent for the amount of all costs and expenses (including legal fees)reasonably incurred by the Agent or the Security Agent in responding to,evaluating, negotiating or complying with that request or requirement.

 

27.3       **Enforcement costs**

 

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

 

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27.4       **SecurityAgent expenses**

 

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

 

27.5       **Undertakingto pay**

 

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

 

(i)             any Finance Document;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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**SECTION 7**

 

**guarantee**

 

28.         **Guaranteeand indemnity**

 

28.1       **Guaranteeand indemnity**

 

Each Guarantor irrevocably and unconditionallyjointly and severally:

 

(a)            guaranteesto each Finance Party punctual performance by each Borrower of all thatBorrower’s obligations under the Finance Documents;

 

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

 

(c)            agreeswith each Finance Party that if, for any reason, any amount claimed by aFinance Party under this Clause 28 is not recoverable on the basis of aguarantee, it will be liable to indemnify that Finance Party against any cost,loss or liability it incurs as a result of a Borrower not paying any amountwhen due under or in connection with any Finance Document. The amount payableby a Guarantor under this indemnity will not exceed the amount it would havehad to pay under this Clause 28 if the amount claimed had been recoverable onthe basis of a guarantee.

 

28.2       **Continuingguarantee**

 

This guarantee is a continuing guarantee andwill extend to the ultimate balance of sums payable by any Obligor under theFinance Documents, regardless of any intermediate payment or discharge in wholeor in part.

 

28.3       **Reinstatement**

 

If as a result of insolvency or any similarevent:

 

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

 

(b)           anydischarge or arrangement (whether in respect of the obligations of any Obligoror any security for those obligations or otherwise) is made in whole or in parton the basis of any payment, security or other thing which is avoided, reducedor must be restored,

 

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

 

(ii)          eachFinance Party shall be entitled to recover the value or amount of that paymentor security from each Obligor, as if the payment, discharge or arrangement hadnot occurred.

 

28.4       **Waiver ofdefences**

 

The obligations of each Guarantor under thisClause 28 will not be affected by an act, omission, matter or thing which, butfor this Clause, would reduce, release or prejudice any of its obligationsunder this Clause 28 (without limitation and whether or not known to it or anyFinance Party) including:

 

(a)            anytime, waiver or consent granted to, or composition with, any Obligor or otherperson;

 

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

 

(c)            thetaking, variation, compromise, exchange, renewal or release of, or refusal orneglect to perfect, take up or enforce, any rights against, or security overassets of, any Obligor or other person or any non-presentation ornon-observance of any formality or other requirement in respect of anyinstrument or any failure to realise the full value of any security;

 

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

 

(e)            anyamendment, novation, supplement, extension, restatement (however fundamentaland whether or not more onerous) or replacement of any Finance Document or anyother document or security, including any change in the purpose of, anyextension of or any increase in any facility or the addition of any newfacility under any Finance Document or other document or security;

 

(f)            anyunenforceability, illegality or invalidity of any obligation of any personunder any Finance Document or any other document or security; or

 

(g)           anyinsolvency or similar proceedings.

 

28.5       **Immediaterecourse**

 

Each Guarantor waives any right it may have offirst requiring any Finance Party (or any trustee or agent on its behalf) toproceed against or enforce any other rights or security or claim payment fromany person before claiming from that Guarantor under this Clause 28.  This waiver applies irrespective of any lawor any provision of a Finance Document to the contrary.

 

28.6       **Appropriations**

 

Until all amounts which may be or becomepayable by the Obligors under or in connection with the Finance Documents havebeen irrevocably paid in full, each Finance Party (or any trustee or agent onits behalf) may:

 

(a)            refrainfrom applying or enforcing any other moneys, security or rights held orreceived by that Finance Party (or any trustee or agent on its behalf) in respectof those amounts, or apply and enforce the same in such manner and order as itsees fit (whether against those amounts or otherwise) and no Guarantor shall beentitled to the benefit of the same; and

 

(b)           holdin an interest-bearing suspense account any moneys received from any Guarantoror on account of any Guarantor’s liability under this Clause 28.

 

28.7       **Deferralof Guarantors’ rights**

 

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

 

(a)            tobe indemnified by an Obligor;

 

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(b)           toclaim any contribution from any other guarantor of any Obligor’s obligationsunder the Finance Documents; and/or

 

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

 

If a Guarantor receives any benefit, payment ordistribution in relation to such rights it shall hold that benefit, payment ordistribution to the extent necessary to enable all amounts which may be orbecome payable to the Finance Parties by the Obligors under or in connectionwith the Finance Documents to be repaid in full on trust for the FinanceParties and shall promptly pay or transfer the same to the Agent or as theAgent may direct for application in accordance with Clause 40 (*Payment mechanics*) of this Agreement.

 

28.8       **Additionalsecurity**

 

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

 

28.9       **Releaseof Guarantors’ right of contribution**

 

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

 

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

 

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

 

28.10     **Preservationof stated share capital of a German Guarantor**

 

(a)         Tothe extent that the guarantee created under this Clause 28 (the “**Guarantee**”) is granted by a Guarantorincorporated in Germany as a limited liability company (*GmbH*) (each a “**German Guarantor**”) and the Guarantee of the German Guarantorguarantees amounts

 

(i)             whichare owed by direct or indirect shareholders of the German Guarantor orSubsidiaries of such shareholders (with the exception of Subsidiaries which arealso Subsidiaries of the German Guarantor); and provided that

 

(ii)            suchamounts do not correspond to funds that have been on-lent to, or otherwise beenpassed on to, the relevant German Guarantor or any of its Subsidiaries and havenot been repaid,

 

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the Guarantee of theGerman Guarantor shall be subject to certain limitations as set out inparagraph (b). In relation to any other amounts guaranteed, the Guarantee ofthe German Guarantor remains unlimited.

 

(b)         Tothe extent that the demand under the Guarantee against a German Guarantor ismade in respect of amounts in relation to which the conditions pursuant toparagraph (a) are fulfilled, the relevant German Guarantor’s liabilityshall be limited as follows:

 

(i)             Subjectto sub-paragraphs (iii) to (viii) below, the Agent shall not beentitled to enforce the Guarantee to the extent that such enforcement has theeffect of

 

(A)         reducingthe German Guarantor’s net assets (*Nettovermögen*)(the “**Net Assets**”) to an amountless than its stated share capital (*Stammkapital*),or

 

(B)          (ifits Net Assets are already lower than its stated share capital) causing suchamount to be further reduced,

 

and thereby affects its assets which arerequired for the obligatory preservation of its stated share capital accordingto §§ 30, 31 German GmbH-Act (*GmbH-Gesetz*)(the “**GmbH-Act**”).

 

(ii)            Thevalue 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)         theamount of any increase of the stated share capital (*Stammkapital*) of the German Guarantor registered after thedate of this Agreement without the prior written consent of the Agent shall bededucted from the relevant stated share capital;

 

(B)          loansprovided to the relevant German Guarantor by a member of the Group shall bedisregarded if such loans are subordinated, or are considered subordinatedpursuant to § 32a GmbH-Act; and

 

(C)          loansand other liabilities incurred in violation of the provisions of this Agreementshall be disregarded to the extent such violation is caused by wilfulmisconduct or gross negligence of the managing directors of the relevantGuarantor.

 

(iii)           Thelimitations set out in sub-paragraph (i) above shall only apply ifand to the extent that the managing director(s) (*Geschäftsführer*) on behalf of the respective GermanGuarantor have confirmed in writing to the Agent within 15 calendar days followingthe Agent’s demand under the Guarantee, to what extent the demanded paymentfulfils the conditions pursuant to paragraph (a) and would cause its NetAssets to fall below its stated share capital (*Stammkapital*)or, if the Net Assets are already less than the stated share capital (*Stammkapital*), would cause such amount tobe further reduced (the “**ManagementDetermination**”).

 

(iv)          Ifthe Agent disagrees with the Management Determination, the Agent shallnevertheless be entitled to enforce the Guarantee up to such amount, which isundisputed 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 been enforced without regard to thelimitation set forth in sub-paragraph (i) because (A) theManagement Determination was not delivered within the relevant time frame or (B) theamount of the available Net Assets pursuant to the Auditor’s Determination islower than the amount stated in the Management Determination, the FinanceParties shall upon written demand of the relevant German Guarantor to the Agent(on behalf of the Finance Parties) repay any amount (if and to the extentalready paid to the Finance Parties) in the case of (A) above, which isnecessary to maintain such German Guarantor’s stated share capital (*Stammkapital*), and in the case of (B) aboveup to and including the amount calculated in the Auditor’s Determinationcalculated as of the date the demand under the Guarantee was made and inaccordance with sub-paragraphs (i) and (ii) above, provided suchdemand for repayment is made to the Agent within 6 months (*Ausschlussfrist*) from the date theGuarantee has been enforced.

 

If pursuant to the Auditor’s Determination theamount of the available Net Assets is higher than set out in the ManagementDetermination the relevant German Guarantor shall pay such amount to theFinance Parties within 5 Business Days after receipt of the Auditor’sDetermination.

 

(vi)          Ifthe German Guarantor intends to demonstrate that the enforcement of the Guaranteehas 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 reasonable opinionof the Agent) significantly lower than their market value and to the extentthat such assets are not necessary for the relevant German Guarantor’s business(*nicht betriebsnotwendig*), to theextent necessary to satisfy the amounts demanded under this paragraph Guarantee.

 

(vii)         Thelimitation set out in sub-paragraph (i) does not affect the right ofthe Finance Parties to claim again any outstanding amount at a later point intime if and to the extent that paragraph (i) would allow this at thatlater point.

 

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(viii)        If the GermanGuarantor demonstrates that, at the time of enforcement, it is obliged to filefor the commencement of insolvency proceedings for reason of over-indebtedness(*Überschuldung*), then for thedetermination of its Net Assets the lower of the amount of net assets shown bya regular balance sheet (*Handelsbilanz*)and by a balance sheet showing an over-indebtedness (*Überschuldungsstatus*)shall be relevant. In the assessment of the Guarantor’s assets for the balancesheet showing an over-indebtedness, however, the continuation of the enterpriseshall not be taken as a basis if according to the circumstances suchcontinuation is not deemed highly likely (*negativeFortführungsprognose*). Sub-paragraphs (iii) to (vii) aboveshall apply mutatis mutandis in relation to the German Guarantor invoking itsover-indebtedness (*Überschuldung*).

 

(c)         ThisClause 28.10 (*Preservation of stated sharecapital 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.

 

28.11     **Limitationapplicable to Finnish Guarantors**

 

No obligations of any Guarantor incorporated inFinland under this Clause 28 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 (*osakeyhtiölaki 624/2006*,as amended or re-enacted from time to time), or (ii) unlawful financialassistance within the meaning of Chapter 13, Section 10 of the FinnishCompanies Act.

 

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**SECTION 8**

** **

**REPRESENTATIONS,UNDERTAKINGS AND EVENTS OF DEFAULT**

 

29.         **Representations**

 

Each Obligor makes the representations andwarranties set out in this Clause 29 to each Finance Party on the date of thisAgreement.

 

29.1       **S****tatus**

 

(a)         Itis a corporation or limited liability company, duly incorporated and validlyexisting under the law of its jurisdiction of incorporation.

 

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

 

29.2       **Bindingobligations**

 

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

 

29.3       **Non-conflictwith other obligations**

 

Theentry into and performance by it of, and the transactions contemplated by, theFinance Documents do not and will not conflict with:

 

(a)            any law or regulation applicable to it;

 

(b)           its or any of its Subsidiaries’ constitutionaldocuments; or

 

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

 

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

 

29.4       **Power andauthority**

 

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

 

29.5       **Validityand admissibility in evidence**

 

AllAuthorisations required:

 

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

 

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

 

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

 

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

 

29.6       **Governinglaw and enforcement**

 

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

 

(b)         Subjectto the Legal Reservations, any judgment obtained in England in relation to aFinance Document will be recognised and enforced in its jurisdiction ofincorporation.

 

29.7       **Deductionof Tax**

 

At the date of this Agreement, it is notrequired to make any deduction for or on account of Tax from any payment it maymake under any Finance Document.

 

29.8       **No filingor stamp taxes**

 

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

 

29.9       **Nodefault**

 

(a)         NoEvent of Default is continuing or might reasonably be expected to result fromthe making of any Utilisation.

 

(b)         Noother event or circumstance is outstanding which constitutes a default underany other agreement or instrument which is binding on it or any of itsSubsidiaries or to which its (or any of its Subsidiaries’) assets are subject whichhas or is reasonably likely to have a Material Adverse Effect.

 

29.10     **InformationMemorandum**

 

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

 

(b)         Thefinancial projections contained in the Information Memorandum have beenprepared on the basis of recent historical information and on the basis of reasonableassumptions.

 

(c)         Nothinghas occurred or been omitted from the Information Memorandum and no informationhas been given or withheld that results in the information contained in theInformation Memorandum being untrue or misleading in any material respect.

 

29.11     **Financialstatements**

 

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

 

(b)         ItsOriginal Financial Statements fairly represent its financial condition andoperations (consolidated in the case of the Company) as at the end of and forthe relevant financial year.

 

(c)         Therehas been no material adverse change in its business or financial condition (orthe business or consolidated financial condition of the Group, in the case ofthe Company) since the date to which its Original Financial Statements weredrawn up.

 

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29.12     **Paripassu ranking**

 

Without limiting Clause 22.17 (*Security*) below, its payment obligations under the FinanceDocuments rank at least pari passu with the claims of all its other unsecuredand unsubordinated creditors, except for obligations mandatorily preferred bylaw applying to companies generally.

 

29.13     **Noproceedings pending or threatened**

 

(a)         Nolitigation, arbitration or administrative proceedings of or before any court,arbitral body or agency which, if adversely determined might reasonably beexpected to have a Material Adverse Effect have (to the best of its knowledgeand belief) been started or threatened against it or any of its Subsidiaries.

 

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

 

29.14     **Environmentallaws and licences**

 

Itand each of its Subsidiaries has:

 

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

 

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

 

(c)            complied with the terms of those EnvironmentalLicences,

 

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

 

29.15     **Environmentalreleases**

 

No:

 

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

 

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

 

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

 

29.16     **Solvency**

 

No:

 

(a)            corporate action, legal proceeding or other procedureor step described in Clause 25.7 (*Insolvencyproceedings*); or

 

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

 

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

 

29.17     **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.

 

29.18     **Legal and 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.

 

29.19     **Assets**

 

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

 

29.20     **JVDocuments**

 

(a)         The JV Documents:

 

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

 

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

 

(iii)           have not been amended from the form in which they were delivered orwaived (in whole or in part) and no consent has been given thereunder, save forany which do not materially and adversely affect the interests of the Lendersor 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.

 

29.21     **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.

 

29.22     **Insurances**

 

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

 

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(b)         No event or circumstance has occurred, and there has been no failure 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.

 

29.23     **Repetition**

 

TheRepeating Representations (and, in the case of paragraph (b) below, therepresentations set out in Clauses 29.5 (*Validityand admissibility in evidence*) and 29.8 (*No filing or stamp taxes*)) are deemed to be made by eachObligor by reference to the facts and circumstances then existing on:

 

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

 

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

 

The representations and warranties set out inClause 22.10 (*Information Memorandum*) aredeemed 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.

 

30.         **Informationundertakings**

 

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

 

30.1       **Financialstatements**

 

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

 

(a)            assoon as the same become available, but in any event within 180 days after theend of each of its financial years and beginning with the financial year ending31 December 2008:

 

(i)           itsaudited consolidated financial statements for that financial year; and

 

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

 

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

 

(i)           itsconsolidated financial statements for that Financial Quarter; and

 

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

 

30.2       **ComplianceCertificate**

 

(a)         TheCompany shall supply to the Agent, with each set of financial statementsdelivered pursuant to paragraph (a)(i) or (b)(i) of Clause 30.1 (*Financial statements*), a ComplianceCertificate setting out (in reasonable detail) computations as to compliancewith Clause 31 (*Financial covenants*)as at the date as at which those financial statements were drawn up.

 

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

 

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

 

(c)         EachCompliance Certificate shall be signed by two directors of the Company and, ifrequired to be delivered with the financial statements delivered pursuant toparagraph (a)(i) of Clause 30.1 (*Financialstatements*), shall be reported on by the Company’s auditors in theform reasonably required by the Agent.

 

30.3       **Requirementsas to financial statements**

 

(a)         Eachset of financial statements delivered by the Company pursuant to Clause 30.1 (*Financial statements*) shall be certifiedby a director of the relevant company as fairly representing its (or, as thecase may be, its consolidated) financial condition and operations as at the endof and for the period in relation to which those financial statements weredrawn up.

 

(b)         The Company shall procure that each set of financialstatements delivered pursuant to Clause 30.1 (*Financialstatements*) is prepared using the Applicable Accounting Principles, unless, in relation to any set of financial statements, it notifies theAgent that there has been a change in GAAP or the relevant accounting practicesor reference 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 financial statementsto 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 thisAgreement and/or to make an accurate comparison between the financial positionindicated in those financial statements and that Obligor’s Original FinancialStatements.

 

Any reference in this Agreement to those financial statements shall beconstrued as a reference to those financial statements as adjusted to reflectthe 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.

 

30.4       **Information:miscellaneous**

 

TheCompany shall supply to the Agent (in sufficient copies for all the Lenders, ifthe Agent so requests):

 

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

 

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

 

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

 

30.5       **Notificationof default**

 

(a)         EachObligor shall notify the Agent of any Default (and the steps, if any, beingtaken to remedy it) promptly upon becoming aware of its occurrence (unless thatObligor is aware that a notification has already been provided by anotherObligor).

 

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

 

30.6       **“Knowyour customer” checks**

 

(a)         If:

 

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

 

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

 

(iii)           aproposed assignment or transfer by a Lender of any of its rights andobligations under this Agreement to a party that is not a Lender prior to suchassignment or transfer,

 

obliges the Agent or any Lender (or, in thecase of paragraph (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)         EachLender shall promptly upon the request of the Agent supply, or procure thesupply of, such documentation and other evidence as is reasonably requested bythe Agent (for itself) in order for the Agent to carry out and be satisfied ithas complied with all necessary “know your customer” or other similar checksunder all applicable laws and regulations pursuant to the transactionscontemplated in the Finance Documents.

 

(c)         TheCompany shall, by not less than 10 Business Days’ prior written notice to theAgent, notify the Agent (which shall promptly notify the Lenders) of itsintention to request that one of its Subsidiaries becomes an Additional Obligorpursuant to Clause 35 (*Changes to theObligors*).

 

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

 

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availableto it, the Company shall promptly upon the request of the Agent or any Lendersupply, or procure the supply of, such documentation and other evidence as isreasonably requested by the Agent (for itself or on behalf of any Lender) orany Lender (for itself or on behalf of any prospective new Lender) in order forthe Agent or such Lender or any prospective new Lender 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 theaccession of such Subsidiary to this Agreement as an Additional Obligor.

 

31.         **Financialcovenants**

 

31.1       **Financialcondition**

 

TheCompany shall ensure that:

 

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

 

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

 

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

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

 

31.2       **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 elementof any expenditure 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 that Relevant Periodafter:

 

(a)            addingthe amount of any decrease (and deducting the amount of any increase) inWorking Capital for that Relevant Period;

 

(b)           addingthe amount of any cash receipts (and deducting the amount of any cash payments)during that Relevant Period in respect of any Exceptional Items not alreadytaken account of in calculating EBITDA for any Relevant Period (other than, inthe case of cash receipts, Net Sale Proceeds or Insurance Proceeds applied inprepayment of the Facilities);

 

(c)            addingthe amount of any cash receipts during that Relevant Period in respect of anyTax rebates or credits and deducting the amount actually paid or due andpayable in respect of Taxes during that Relevant Period by any member of theGroup;

 

(d)           adding(to the extent not already taken into account in determining EBITDA) the amountof any dividends or other profit distributions received in cash by any memberof the Group during that Relevant Period from any entity which is itself not amember of the Group and deducting (to the extent not already deducted indetermining EBITDA) the amount of any dividends paid in cash during theRelevant Period to minority shareholders in members of the Group;

 

(e)            addingthe amount of any increase in provisions, other non-cash debits and othernon-cash charges (which are not Current Assets or Current Liabilities) anddeducting the amount of any non-cash credits (which are not Current Assets orCurrent Liabilities) in each case to the extent taken into account inestablishing EBITDA;

 

(f)            deductingthe amount of any Capital Expenditure actually made (or due to be made) duringthat Relevant Period by any member of the Group and the aggregate of any cashconsideration paid for, or the cash cost of, any  Permitted Acquisitions and Permitted JointVentures except (in the case) to the extent funded from;

 

(i)           CashGenerated for Financing in the Relevant Period ending immediately prior to thefirst day of the Current Relevant Period (the “**PreviousRelevant Period**”) less Debt Service for the Previous RelevantPeriod;

 

(ii)          NetSale Proceeds or Insurance Proceeds permitted to be retained for this purpose;or

 

(iii)         newequity or Financial Indebtedness subordinated to the Facilities on termsacceptable to the Majority Lenders (acting reasonably) and received from aperson which is not a member of the Group; and

 

(g)           deductingthe amount of any cash costs of Pension Items during that Relevant Period tothe 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.

 

“**Current Assets**”means the aggregate (on a consolidated basis) of all inventory, work inprogress, trade and other receivables of each member of the Group includingprepayments in relation to operating items and sundry debtors (but excludingCash and Cash Equivalent Investments) maturing within twelve months from thedate of computation but **excluding**amounts in respect of:

 

(a)            receivablesin relation to Tax;

 

(b)           ExceptionalItems and other non-operating items;

 

(c)            insuranceclaims; and

 

(d)           anyinterest owing to any member of the Group.

 

“**Current Liabilities**”means the aggregate (on a consolidated basis) of all liabilities (includingtrade creditors, accruals and provisions) of each member of the Group fallingdue within twelve months from the date of computation but **excluding**amounts in respect of:

 

(a)            liabilitiesfor Debt, other Financial Indebtedness or pensions and Interest Expenses;

 

(b)           liabilitiesfor Tax;

 

(c)            ExceptionalItems and other non-operating items; and

 

(d)           insuranceclaims.

 

“**Debt**” means, atany time, the aggregate outstanding principal, capital or nominal amount (andany fixed or minimum premium payable on prepayment (to the extent the relevantmember of the Group has taken action that will result in such premium beingrequired to be paid) or redemption) of Financial Indebtedness of members of theGroup but excluding:

 

(a)            anyindebtedness referred to in paragraphs (f), (g) or (i) of thedefinition of Financial Indebtedness (provided that, in relation to paragraphs (f) and(i) of such definition, only to the extent such indebtedness is notclassified as borrowings under IFRS);

 

(b)           anyguarantee in respect of Financial Indebtedness to the extent such guarantee isnot classified as a borrowing under IFRS; and

 

(c)            anyFinancial Indebtedness subordinated to the Facilities under the SubordinationAgreement or otherwise on terms acceptable to the Majority Lenders (actingreasonably) including, without limitation, any subordinated shareholder loans.

 

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

 

(a)            InterestExpenses for that Relevant Period;

 

(b)           theaggregate of all scheduled repayments of Debt falling due during that RelevantPeriod  but excluding:

 

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(i)           anyamounts falling due under any overdraft or revolving facility (including,without limitation, Facility B and any Ancillary Facility) and which wereavailable for simultaneous redrawing according to the terms of that facility;

 

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

 

(iii)         anyprepayment of Debt existing on the date of this Agreement which is required tobe repaid under the terms of this Agreement; and

 

(c)            theamount of the capital element of any payments in respect of that RelevantPeriod payable under any Finance Lease entered into by any member of the Group,

 

and so that no amount shall be included morethan once.

 

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

 

(a)            **beforededucting** any Net Interest Expensesand other finance charges in respect of Financial Indebtedness;

 

(b)           **notincluding** any accrued interest owingto any member of the Group;

 

(c)            **beforetaking** into account anyExceptional Items (and after adding the amount of any profit which would havebeen generated by Kemira Pigments in that Relevant Period but for the strikesthat occurred in that Relevant Period, in each case as referred to in the KPMGSupplementary Report);

 

(d)           **beforededucting** JV Costs up to an amountnot exceeding €8,000,000 (for the avoidance of doubt, JV Costs exceeding€8,000,000 shall be deducted to the extent otherwise required to be deductedpursuant to the terms of this Agreement);

 

(e)            **afterdeducting** the amount of any profit(or adding back the amount of any loss) of any member of the Group which isattributable to minority interests;

 

(f)            plusor minus the Group’s share of the profits or losses (after finance costs andtax) of Non-Group Entities (**after deducting**the amount of any profit of any Non-Group Entity to the extent that the amountof the profit included in the financial statements of the Group exceeds theamount actually received in cash by members of the Group through distributionsby the Non-Group Entity);

 

(g)           **beforetaking into account** anyunrealised gains or losses on any derivative instrument;

 

(h)           **beforetaking into account** anygain or loss on the disposal or revaluation of assets (other than in theordinary course of trading);

 

(i)             beforetaking into account any Pension Items;

 

(j)             **afteradding back** any amountattributable to the amortisation, depreciation or impairment of assets ofmembers of the Group (and taking no account of the reversal of any previousimpairment charge made in that Relevant Period); and

 

(k)            **afteradding back**, to the extentdeducted, any non-recurring fees, expenses or charges paid in relation to (A) anyrestructuring, provided that it has a future identifiable benefit 

 

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forthe operation of the Group (as approved by the Agent in consultation with theLenders) and the amount added back does not exceed €10,000,000 in any financialyear of the Company or €25,000,000 from the date of this Agreement; and (B) anyPermitted Acquisition or Permitted Joint 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.

 

“**Exceptional Items**”means any exceptional, one off, non-recurring or extraordinary items (includingwithout limitation any lay-off and other restructuring costs and any additionalpension costs relating thereto, in each case incurred by Kemira Pigments and asreferred to in the KPMG Supplementary Report).

 

“**Financial Year**”means the annual accounting period of the Group.

 

“**Interest Expenses**”means, for any Relevant Period, the aggregate amount of the accrued interest,commission, fees, discounts, prepayment fees, premiums or charges and otherfinance payments in respect of Debt (including, for the avoidance of doubt, anyFinancial Indebtedness subordinated to the Facilities) whether paid or payable(unless capitalised or included pursuant to paragraph (d) below) by anymember of the Group (calculated on a consolidated basis) in respect of thatRelevant Period:

 

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

 

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

 

(c)            **including** any commission, fees, discounts and other financepayments payable by (and deducting any such amounts payable to) any member ofthe Group under any interest rate hedging arrangement;

 

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

 

(e)            takingno account of any unrealised gains or losses on any derivative instruments,

 

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 anyother 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 EquivalentInvestments held by any member of the Group at that time,

 

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

 

“**Net Interest Expenses**”means, for any Relevant Period, the Interest Expenses for that Relevant Periodafter **deducting** any interest or any otherfinancial income payable in that Relevant Period to any member of the Group onany Cash or Cash Equivalent Investment.

 

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“**Non-Group Entity**”means any investment or entity (which is not itself a member of the Group(including associates and Joint Ventures)) in which any member of the Group hasan ownership interest.

 

“**Pension Items**”means any income or charge attributable to a post-employment benefit schemeother than the current service costs and any past service costs andcurtailments and settlements attributable to the scheme.

 

“**Working Capital**”means, on any date, Current Assets less Current Liabilities.

 

31.3       **Financialcovenant calculations**

 

(a)            CapitalExpenditure, Cash Generated for Financing, Current Assets, Current Liabilities,Debt, Debt Service, EBITDA, Exceptional Items, Interest Expenses, NetInterest Expenses, Net Debt and Working Capital shall be calculated andinterpreted on a consolidated basis in accordance with the ApplicableAccounting Principles, unless expressly provided to the contrary, and shall beexpressed in euro.

 

(b)           CapitalExpenditure, Cash Generated for Financing, EBITDA, Interest Expenses, NetInterest Expenses, Net Debt and Working Capital shall be determined (except asneeded to reflect the terms of this Clause 31) from the financial statements ofthe Group and Compliance Certificates delivered under Clause 30.1 (*Financial statements*), and Clause 30.2 (*ComplianceCertificate*).

 

(c)            Forthe purpose of this Clause 31, an amount outstanding or repayable on aparticular 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)           Forthe purpose of this Clause 31, no item shall be included or excluded more thanonce in any calculation.

 

(e)            Tothe extent that any period prior to the date of first Utilisation of anyFacility is included in any Relevant Period in Clause 31.1 (*Financial condition*):

 

(i)           NetInterest Expenses for the period from the beginning of the Relevant Perioduntil the date of first Utilisation of any Facility shall be calculated on apro forma basis on the basis of the actual Net Interest Expenses from the dateof first Utilisation of any Facility until the end of the Relevant Period; and

 

(ii)          EBITDAfor the period from the beginning of the Relevant Period until the date offirst Utilisation of any Facility shall be the actual earnings before interest,tax, depreciation and amortisation calculated using the same principles set outin this Clause 31 for the calculation of EBITDA.

 

(f)            TheCompany shall provide the Agent with the financial information and pro formacomputations necessary to calculate these items.

 

(g)           Ifany Permitted Acquisition occurs during a Relevant Period in relation to abusiness or company and the underlying business or company is not subsequentlydisposed of

 

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duringthat Relevant Period (an “**Acquired Entity**”),the Acquired Entity’s earnings before interest, tax, depreciation andamortisation and cash generated for financing (calculated using the principlesset out in this Clause 31 for the calculation of EBITDA and Cash Generated forFinancing, respectively) in respect of the part of the Relevant Period beforeits acquisition shall be included in determining EBITDA and Cash Generated forFinancing for that Relevant Period.

 

(h)           Ifany Permitted Disposal occurs during a Relevant Period in relation to abusiness 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 31 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)             NetInterest Expenses and Debt Service shall be adjusted to reflect the assumptionof debt relating to any Acquired Entity or repayment of debt relating to anySold Entity.

 

32.         **Generalundertakings**

 

The undertakings in this Clause 32 remain inforce from the date of this Agreement for so long as any amount is outstandingunder the Finance Documents or any Commitment is in force.

 

32.1       **Authorisations**

 

(a)         EachObligor shall promptly:

 

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

 

(ii)            onrequest 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.

 

32.2       **Compliancewith 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.

 

32.3       **Negativepledge**

 

(a)         NoObligor shall (and the Company shall ensure that no other member of the Groupwill) create or permit to subsist any Security or Quasi Security over any ofits assets.

 

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

 

32.4       **Disposals**

 

(a)         NoObligor shall (and the Company shall ensure that no other member of the Groupwill) enter into a single transaction or a series of transactions (whetherrelated or not and whether voluntary or involuntary) to sell, lease, transferor 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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32.5       **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.

 

32.6       **Change ofbusiness**

 

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.

 

32.7       **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.

 

32.8       **Environmentalundertakings**

 

EachObligor shall (and the Company shall ensure that each other member of the Groupwill):

 

(a)            comply with all Environmental Laws to which it issubject;

 

(b)           obtain all Environmental Licences required inconnection with its business; and

 

(c)            comply with the terms of all those EnvironmentalLicences,

 

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

 

32.9       **Environmentalclaims**

 

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.

 

32.10     **Assets**

 

Each Obligor shall (and the Company shall ensure that each other memberof the Group will) maintain in good working order and condition (ordinary wearand tear excepted) all its assets necessary for the conduct of its business asconducted from time to time.

 

32.11     **Pari passu**

 

Each Obligor shall ensure that its obligations under the FinanceDocuments rank at all times at least *paripassu* in right of priority and payment with the claims of all itsother unsecured and unsubordinated creditors, except for obligationsmandatorily preferred by law applying to companies generally.

 

32.12     **Loans or credit**

 

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

 

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

 

32.13     **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.

 

32.14     **FinancialIndebtedness**

 

(a)         No Obligor shall (and the Company shall ensure that no other member ofthe Group will) incur (or agree to incur) or allow to remain outstanding anyFinancial Indebtedness.

 

(b)         Paragraph (a) above does not apply to Financial Indebtedness thatis Permitted Financial Indebtedness or a Permitted Transaction.

 

32.15     **Restrictedpayments**

 

The Company shall not:

 

(i)             declare, pay or make any dividend or other payment or distribution ofany 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 theratio of Net Debt on the most recent Quarter Date to EBITDA for the RelevantPeriod ending on that Quarter Date is less than or equal to 2.50:1.00 and thatimmediately after any such action is taken, such ratio will be less than orequal to 2.50:1.00.

 

32.16     **Acquisitions**

 

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

 

(i)             acquire any share in, or any security issued by, any person, or any interesttherein (or agree to do any of the foregoing); or

 

(ii)            acquire any business or going concern, or the whole or substantially thewhole of the assets or business of any person, or any assets that constitute adivision or operating unit of the business of any person (or agree to do any ofthe foregoing).

 

(b)         Paragraph (a) above does not apply to any acquisition or investmentwhich is a Permitted Acquisition or a Permitted Transaction.

 

32.17     **Arm’slength terms**

 

(a)         No Obligor shall (and the Company shall ensure that no other member ofthe Group will) enter into any contract or arrangement with or for the benefitof any other person which is not a member of the Group (including any disposalto that person) other than in the ordinary course of business and on arm’slength 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 anObligor shall enter into any contract or arrangement regarding a sale, lease,transfer or other disposal or a loan, credit or other arrangement having asimilar effect with or for the benefit of any Obligor on terms lessadvantageous to that Obligor than arm’s length terms.

 

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32.18     **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)         No Obligor shall (and the Company shall ensure that no other member ofthe Group will) enter (or agree to enter) into any derivative transaction.

 

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

 

32.19     **Pensions**

 

The Company shall ensure that all pension schemes maintained or operatedby, or for the benefit of, any member of the Group and/or any of its employees:

 

(i)             are maintained and operated in all material respects in accordance 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 recognisedstanding being rectified in accordance with those governing provisions.

 

32.20     **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.

 

32.21     **JointVentures**

 

(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 QuasiSecurity for, or otherwise underwrite, the obligations of, or incur any otherliability (whether actual or contingent and whether present or future) inrespect of, a Joint Venture (or agree to do any of the foregoing).

 

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(b)         Paragraph (a) above does not apply to any acquisition of orinvestment in, or transfer or loan to, or guarantee, Security or Quasi Securityfor the obligations of, or any other liability in respect of, the Ti02 JointVenture or a Permitted Joint Venture.

 

32.22     **Guaranteesand 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 inaccordance with Clause 35 (*Changes tothe Obligors*).

 

(b)         The Company need only perform its obligations under paragraph (a) aboveif it is not unlawful for the relevant person to become a Guarantor and thatperson becoming a Guarantor would not result in personal liability for thatperson’s directors or other management. Each Obligor must use, and must procurethat the relevant person uses, all reasonable endeavours lawfully available toavoid any such unlawfulness or personal liability. This includes agreeing to alimit on the amount guaranteed. The Agent may (but shall not be obliged to)agree to such a limit if, in its opinion, to do so would avoid the relevantunlawfulness or 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 orassurance of any asset and the giving of any notice, order or direction and themaking of any registration which the Agent or the Security Agent may reasonablyrequire.

 

(d)         The Company 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 the then most recent annual andquarterly unaudited unconsolidated financial statements of each Guarantor andthe then most recent annual and quarterly audited consolidated financialstatements of the Group.

 

32.23     **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.

 

32.24     **Condition subsequent**

 

Within 20 Business Days of request by theSecurity Agent (or such longer period as the Company and the Security Agent (inits sole discretion) may agree), the Company shall enter into a Transferof Title for Security Agreement and/or an Agreement on the Security Assignmentof Intellectual Property Rights (on terms substantially the same as the termsof the existing Security Documents), if the Security Agent considers itnecessary to do so to protect the legitimate interests of the Finance Parties(taking into account (i) the value of the assets subject to security underthe existing Security Documents as a whole and (ii) the proportion of thecosts associated with the taking and perfection of the additional security tothe value of the assets proposed to be subject to the additional securityrequested by the Security Agent).

 

33.         **Events ofDefault**

 

Each of the events or circumstances set out inClause 33 is an Event of Default (save for Clause 33.16 (*Acceleration*).

 

33.1       **Non-payment**

 

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

 

(a)            itsfailure to pay is caused by:

 

(i)           administrativeor technical error; or

 

(ii)          aDisruption Event; and

 

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

 

33.2       **Financialcovenants**

 

Any requirement of Clause 31 (*Financial covenants*) is not satisfied.

 

33.3       **Otherobligations**

 

(a)         Anyperson (other than a Finance Party) does not comply with Clauses 32.4 (*Disposals*), 32.5 (*Merger*), 32.14(*Financial Indebtedness*), 32.16 (*Acquisitions*), 32.21 (*Joint ventures*)and 32.22 (*Guarantees and Security*) (other thanparagraph (c) thereof).

 

(b)         AnObligor does not comply with any provision of the Finance Documents (other thanthose referred to in Clause 33.1 (*Non-payment*)and Clause 33.2 (*Financial covenants*)and paragraph (a) above), unless the failure to comply is capable ofremedy and is remedied within 20 Business 

 

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Daysof the earlier of the Agent giving notice to the Company or the Companybecoming aware of the failure to comply.

 

33.4       **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.

 

33.5       **Crossdefault**

 

(a)         AnyFinancial Indebtedness of any member of the Group is not paid when due norwithin 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)         Anycommitment for any Financial Indebtedness of any member of the Group iscancelled or suspended by a creditor of any member of the Group as a result ofan 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)         NoEvent of Default will occur under this Clause 33.5 if the aggregate amount ofFinancial Indebtedness or commitment for Financial Indebtedness falling withinparagraphs (a) to (d) above is less than €1,000,000 (or itsequivalent in any other currency or currencies).

 

33.6       **Insolvency**

 

(a)         Amember of the Group is unable or admits inability to pay its debts as they falldue, suspends making payments on any of its debts or, by reason of actual oranticipated financial difficulties, commences negotiations with one or more ofits 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)         Amoratorium is declared in respect of any indebtedness of any member of theGroup.

 

33.7       **Insolvencyproceedings**

 

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

 

(i)             apetition 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

 

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(ii)           actionsare taken pursuant to section 21 of the German Insolvency Code by acompetent court; or

 

(iii)          itcommences negotiations with one or more of its creditors with a view to thegeneral 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)            thesuspension of payments, a moratorium of any indebtedness, winding-up,dissolution, administration or reorganisation (by way of voluntary arrangement,scheme of arrangement or otherwise) of any member of the Group other than asolvent liquidation or reorganisation of any member of the Group which is notan Obligor;

 

(ii)            acomposition, compromise, assignment or arrangement with any creditor of anymember of the Group;

 

(iii)          theappointment of a liquidator (other than in respect of a solvent liquidation ofa 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)          enforcementof any Security over any assets of any member of the Group, or

 

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

 

provided that no Event of Default shall haveoccurred under this Clause 33.7 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 of bankruptcy (*asetettu konkurssiin*);

 

(ii)            an insolvencyincludes a bankruptcy (*konkurssi*) andany business restructuring (*yrityssaneeraus*);

 

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

 

(iv)          anadministrator includes a “*selvittäjä*” and“*valvoja*” in a business restructuring (*yrityssaneeraus*); and

 

(v)           anattachment includes a “*takavarikko*”and/or any other “*turvaamistoimi*” granted inaccordance with Finnish law.

 

33.8       **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.

 

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33.9       **Ownershipof the Obligors**

 

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

 

33.10     **Unlawfulness**

 

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

 

33.11     **Repudiation**

 

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

 

33.12     **Securityand guarantees**

 

Any Security Document or any guarantee in, or any subordination under,any Finance Document is not in full force and effect or any Security Documentdoes not create in favour of the Security Agent for the benefit of the FinanceParties, the Security which it is expressed to create fully perfected and withthe ranking and priority it is expressed to have in a manner and to an extentwhich is or is reasonably likely to be materially adverse to the interests of theLenders under the Finance Documents.

 

33.13     **Materialadverse change**

 

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

 

33.14     **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 oradministrative proceedings which are vexatious or frivolous.

 

33.15     **Cessationof business**

 

Any Obligor suspends or ceases (or threatens to suspend or cease) tocarry on all or a material part of its business except as part of a PermittedMerger, Permitted Transaction or a Permitted Disposal.

 

33.16     **Acceleration**

 

(a)         Onand at any time after the occurrence of an Event of Default which is continuingthe Agent may, and shall if so directed by the Majority Lenders, by notice tothe Company:

 

(i)             cancelthe Total Commitments whereupon they shall immediately be cancelled;

 

(ii)            declarethat all or part of the Utilisations, together with accrued interest, and allother amounts accrued or outstanding under the Finance Documents be immediatelydue and payable, whereupon they shall become immediately due and payable;

 

(iii)           declarethat all or part of the Utilisations be payable on demand, whereupon they shallimmediately become payable on demand by the Agent on the instructions of theMajority Lenders; and/or

 

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(iv)          declarethat full cash cover in respect of each Letter of Credit or Bank Guarantee isimmediately due and payable whereupon it shall become immediately due andpayable.

 

(b)         Promptly after being notified by the Agent of the Acceleration Date,each Ancillary Lender shall by notice to the Company:

 

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

 

(ii)            declare that all or the corresponding part of the utilisations under 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 immediately due and payable, whereuponthey shall become immediately 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**

 

**CHANGESTO PARTIES**

 

34.                           **Changesto the Lenders**

 

34.1                     **Assignmentsand transfers by the Lenders**

 

Subject to this Clause 34, a Lender (the “**Existing****Lender**”)may:

 

(a)                                   assign any of its rights; or

 

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

 

to another bank or financial institution or 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**”).

 

34.2                     **Conditionsof 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)                           The consent 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)                           The consent of the Issuing Bank to an assignment or transfer is requiredin accordance with paragraph (a) of Clause 7.2 (*Assignmentsand 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)                              A transfer will only be effective if the procedure set out in Clause 34.5(*Procedure for transfer*) iscomplied with.

 

(g)                           Any assignment or transfer by an Existing Lender to a New Lender shallonly be effective if it transfers or assigns the Existing Lender’s share ofeach 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 23 (*Tax gross-up and indemnities*) or Clause 24(*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.

 

34.3                     **Assignmentor 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.

 

34.4                     **Limitationof 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)                           Each New Lender confirms to the Existing Lender and the other FinanceParties that it:

 

(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 34; 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 the FinanceDocuments or otherwise.

 

34.5                     **Procedurefor transfer**

 

(a)                            Subject to the conditions set out in Clause 34.2 (*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 Transfer Certificatedelivered to it by the Existing Lender and the New Lender once it is satisfiedit has complied with all necessary “know your customer” or other similar checksunder all applicable laws and regulations in relation to the transfer to suchNew 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”.

 

34.6                     **Copyof 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.

 

34.7                     **Disclosureof 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 34.8 (*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 to whom theinformation is to be given has entered into a Confidentiality Undertaking.  This Clause supersedes any previous agreementrelating to the confidentiality of this information.

 

34.8                     **Securityover Lenders’ rights**

 

In addition to the other rights provided toLenders under this Clause 34, each Lender may without consulting with orobtaining consent from any Obligor, at any time charge, assign or otherwisecreate Security in or over (whether by way of collateral or otherwise) all orany of its rights under any Finance Document to secure obligations of thatLender 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.

 

35.                           **Changesto the Obligors**

 

35.1                     **Assignmentsand transfer by Obligors**

 

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

 

35.2                     **AdditionalBorrowers**

 

(a)                            Subject to compliance with the provisions of paragraphs (c) and (d) ofClause 30.6 (*“Know your customer” checks*),the Company may request that any of its wholly owned Subsidiaries becomes anAdditional Borrower.  That Subsidiaryshall become an Additional Borrower 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 5 (*Conditionsprecedent*) in relation to that Additional Borrower, each in form andsubstance satisfactory to the Agent.

 

(b)                           The Agent shall notify the Company and the Lenders promptly upon beingsatisfied that it has received (in form and substance satisfactory to it) allthe documents and other evidence listed in Part II of Schedule 5 (*Conditions precedent*).

 

35.3                     **Resignationof a Borrower**

 

(a)                            In this Clause 35.3 (*Resignation of a Borrower*),Clause 28.5 (*Resignation of a Guarantor*) andClause 28.7 (*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 32.4 (*Disposals*)or made with the approval of the Majority Lenders (and the Parent has confirmedthis is the case).

 

(b)                           If a Borrower is the subject of a Third Party Disposal, the Company mayrequest that such Borrower (other than the Company) ceases to be a Borrower bydelivering to the Agent a Resignation Letter.

 

(c)                            The Agent shall accept a Resignation Letter and notify the Company andthe other Finance 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 35.5 (*Resignation of a Guarantor*)),its obligations in its capacity as Guarantor continue to be legal, valid,binding and enforceable and in full force and effect (subject to the 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 18.5 (*Mandatory prepayment — Net Sale Proceeds*).

 

(d)                           Upon notification by the Agent to the Company of its acceptance of theresignation of a Borrower, that company shall cease to be a Borrower and shallhave no further rights or obligations under the Finance Documents as a Borrowerexcept that the resignation shall not take effect (and the Borrower willcontinue to have rights and obligations under the Finance Documents) until thedate on which the Third Party Disposal takes effect.

 

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(e)                            The Agent may, at the cost and expense of the Company, require a 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.

 

35.4                     **AdditionalGuarantors**

 

(a)                            Subject to compliance with the provisions of paragraphs (c) and (d) ofClause 30.6 (*“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 5 (*Conditionsprecedent*) in relation to that Additional Guarantor, each in formand substance satisfactory to the Agent.

 

(b)                           The Agent shall notify the Company and the Lenders promptly upon beingsatisfied that it has received (in form and substance satisfactory to it) allthe documents and other evidence listed in Part II of Schedule 5 (*Conditions precedent*).

 

35.5                     **Resignationof 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 35.3 (*Resignation of a Borrower*)) and the Company has confirmed thisis the case.

 

(b)                           The Agent shall accept a Resignation Letter and notify the Company andthe Lenders of 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 28.1 (*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 a Borrowerunder Clause 35.3 (*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 18.5 (*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.

 

35.6                     **Repetitionof Representations**

 

Delivery of an Accession Letter constitutesconfirmation by the relevant Subsidiary that the Repeating Representations andeach of the representations set out in Clauses 29.5 (*Validity and admissibility in evidence*), 29.7 (*Deduction of Tax*) and 29.8 (*No filing or stamp taxes*) are true 

 

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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.

 

35.7                     **Resignationand 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**

 

**THEFINANCE PARTIES**

 

36.                           **Role ofthe Agent, the Security Agent and the Arranger**

 

36.1                     **Appointmentof 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)                           Each other Finance Party appoints the Security Agent to act as securitytrustee under 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.

 

(d)                           For the avoidance of doubt, each other Finance Party authorises theAgent to execute and deliver the Subordination Agreement.

 

36.2                     **Dutiesof 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)                           Except where a Finance Document specifically provides otherwise, theAgent is not obliged to review or check the adequacy, accuracy or completenessof any document it forwards to another Party.

 

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

 

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

 

(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 10 (*Security Agency provisions*).

 

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

 

36.3                     **Roleof 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.

 

36.4                     **Roleof 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.

 

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36.5                     **Nofiduciary 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.

 

(b)                           Neither the Agent, the Security Agent (except as expressly provided inany Finance Document) nor the Arranger shall be bound to account to any Lenderfor any sum or the profit element of any sum received by it for its ownaccount.

 

36.6                     **Businesswith 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.

 

36.7                     **Rightsand 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)                           The Agent and the Security Agent may assume (unless it has receivednotice to the contrary in its capacity as agent for the Lendersor, as the case may be, as security trustee for theFinance Parties) that:

 

(i)                                      no Default has occurred (unless it has actual knowledge of a Defaultarising under Clause 33.1 (*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)                           Each of the Agent and the Security Agent may act in relation to theFinance Documents 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.

 

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36.8                     **MajorityLenders’ 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 any act (or omission) if it acts (orrefrains from taking any action) in accordance with an instruction of theMajority Lenders.

 

(b)                           Unless a contrary indication appears in a Finance Document, anyinstructions given by the Majority Lenders will be binding on all the FinanceParties.

 

(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 the absence of instructions from the Majority Lenders (or, ifappropriate, the Lenders), each of the Agent and the Security Agent may act (orrefrain from taking action) as it considers to be in the best interest of theLenders.

 

(e)                            Neither the Agent nor the Security Agent is authorised to act on behalfof a Lender (without first obtaining that Lender’s consent) in any legal orarbitration proceedings relating to any Finance Document.

 

36.9                     **Responsibilityfor 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.

 

36.10               **Exclusionof liability**

 

(a)                            Without limiting paragraph (b) below (and without prejudice to theprovisions of paragraph (e) of Clause 40.11 (*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)                           No Party (other than the Agent or the Security Agent) may take anyproceedings against any officer, employee or agent of the Agent or the SecurityAgent in respect of any claim it might have against the Agent or the SecurityAgent or in respect of any act or omission of any kind by that officer,employee or agent in relation to any Finance Document and any officer, employeeor agent of the Agent or the Security Agent may rely on this Clause.

 

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(c)                            Neither the Agent nor the Security Agent will be liable for any delay(or any related consequences) in crediting an account with an amount 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.

 

(d)                           Nothing in this Agreement shall oblige the Agent or the Arranger tocarry out any “know your customer” or other checks in relation to any person onbehalf of any Lender and each Lender confirms to the Agent and the Arrangerthat it is solely responsible for any such checks it is required to carry outand that it may not rely on any statement in relation to such checks made bythe Agent or the Arranger.

 

36.11           **Lenders’indemnity to the Agent and the Security Agent**

 

Each Lender shall (in proportion to its shareof the Total Commitments or, if the Total Commitments are then zero, to itsshare of the Total Commitments immediately prior to their reduction to zero)indemnify the Agent and the Security Agent, within three Business Days ofdemand, against any cost, loss or liability including without limitation fornegligence or any other category of liability whatsoever incurred by the Agentor the Security Agent (otherwise than by reason of its gross negligence orwilful misconduct) (or in the case of any cost, loss or liability pursuant toClause 40.11 (*Disruption to Payment Systemsetc.*) notwithstanding the Agent’s negligence, gross negligence orany other category of liability whatsoever but not including any claim based onthe fraud of the Agent) in acting as Agent or, as the case may be, SecurityAgent under the Finance Documents (unless it has been reimbursed by an Obligorpursuant to a Finance Document).

 

36.12           **Resignationof 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)                           Alternatively the Agent or the Security Agent may resign by givingnotice to the other Finance Parties and the Company, in which case the MajorityLenders (after consultation with the Company) may appoint a successor Agent or,as the case may be, Security Agent in each case acting through an office in theUnited Kingdom, 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)                           The retiring Agent or Security Agent shall, at its own cost, makeavailable to its successor such documents and records and provide suchassistance as its successor may reasonably request for the purposes ofperforming its functions as Agent or Security Agent under the FinanceDocuments.

 

(e)                            The resignation notice of the Agent or Security Agent shall only takeeffect upon the appointment of a successor.

 

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(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 36. 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.

 

(g)                            After consultation with the Company, the Majority Lenders may, by noticeto the Agent or, as the case may be, the Security Agent, require it to resignin accordance with paragraph (b) above. In this event, the Agent or, as the case may be, the Security Agentshall resign in accordance with paragraph (b) above.

 

36.13           **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)                           If information is received by another division or department of theAgent or, as the case may be, the Security Agent, it may be treated asconfidential to that division or department and the Agent or, as the case maybe, the Security Agent shall not be deemed to have notice of it.

 

36.14           **Relationshipwith 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)                           Each Lender shall supply the Agent with any information required by theAgent in order to calculate the Mandatory Cost in accordance with Schedule 7 (*Mandatory Cost**formulae*).

 

36.15           **Creditappraisal 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 

 

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personunder or in connection with any Finance Document, the transactions contemplatedby the Finance Documents or any other agreement, Security, arrangement ordocument entered into, made or executed in anticipation of, under or inconnection with any Finance Document.

 

36.16           **ReferenceBanks**

 

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.

 

36.17           **Managementtime of the Agent and the Security Agent**

 

If an Event of Default has occurred and iscontinuing, any amount payable to the Agent or the Security Agent under Clause 25.3(*Indemnity to the Agent**and the Security**Agent*), Clause 27 (*Costs and expenses*) and Clause 36.11 (*Lenders’ indemnity to the Agent**and the Security**Agent*) shall include the cost of 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 22 (*Fees*).

 

36.18           **SecurityAgency provisions**

 

The provisions of Schedule 10 (*Security Agency provisions*) shall bindeach Party.

 

36.19           **Deductionfrom amounts payable by the Agent or the Security Agent**

 

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.

 

37.                         **ParallelDebt**

 

(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)                           Each Obligor and the Security Agent acknowledge that the obligations ofeach Obligor under paragraph (a) are several and are separate andindependent from, and shall not in any way affect, the correspondingobligations of that Obligor to any Finance Party under any Finance Document(its “**Corresponding Debt**”)provided that:

 

(i)                                      the amounts for which each Obligor is liable under paragraph (a) (its“**Parallel Debt**”) shall 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.

 

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(c)                            For the purpose of this Clause 37, 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.

 

(d)                           All monies received by the Security Agent pursuant to this Clause, andall amounts received by the Security Agent from or by the enforcement of anySecurity granted to secure the Parallel Debt, shall be applied in accordancewith paragraph 15 (*Order of application*)of Schedule 10 (*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.

 

38.                         **Conductof 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, remissionor repayment available to it or the extent, order and manner of any claim; or

 

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

 

39.                         **Sharingamong the Finance Parties**

 

39.1                  **Paymentsto Finance Parties**

 

If a Finance Party (a “**RecoveringFinance Party**”) receives or recovers any amount from an Obligorother than in accordance with Clause 40 (*Paymentmechanics*) and applies that amount to a payment due under the FinanceDocuments 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 40 (*Payment mechanics*),without taking account of any Tax which would be imposed on the Agent inrelation to the 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 

 

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lessany amount which the Agent determines may be retained by the Recovering FinanceParty as its share of any payment to be made, in accordance with Clause 40.5 (*Partial payments*).

 

39.2                  **Redistributionof payments**

 

The Agent shall treat the Sharing Payment as ifit had been paid by the relevant Obligor and distribute it between the FinanceParties (other than the Recovering Finance Party) in accordance with Clause 40.5(*Partial payments*).

 

39.3                  **RecoveringFinance Party’s rights**

 

(a)                           On a distribution by the Agent under Clause 39.2 (*Redistribution of payments*), theRecovering Finance Party will be subrogated to the rights of the FinanceParties which have shared in the redistribution.

 

(b)                           If and to the extent that the Recovering Finance Party is not able torely on its rights under paragraph (a) above, the relevant Obligor shallbe liable to the Recovering Finance Party for a debt equal to the SharingPayment which is immediately due and payable.

 

39.4                  **Reversalof 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 39.2 (*Redistributionof payments*) shall, upon request of the Agent, pay to the Agent foraccount of that Recovering Finance Party an amount equal to the appropriatepart of its share of the Sharing Payment (together with an amount as isnecessary to reimburse that Recovering Finance Party for its proportion of anyinterest on the Sharing Payment which that Recovering Finance Party is requiredto 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.

 

39.5                  **Exceptions**

 

(a)                           This Clause 39 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)                           A Recovering Finance Party is not obliged to share with any otherFinance Party any amount which the Recovering Finance Party has received orrecovered as a result 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.

 

39.6                  **Losssharing**

 

(a)                           In this Clause:

 

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“**Loss Sharing Date**” means the date (ifany) on which the Agent exercises any of its rights under paragraph (a)(ii) and/or(a)(iv) of Clause 33.16 (*Acceleration*)or the date (if any) on which the Facilities are cancelled under Clause 18.3 (*Change of control*).

 

(b)                           If, at any time after the Loss Sharing Date, for any reason:

 

(i)                                      any outstandings under Facility B or any Ancillary Facility will not 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 Ancillary Lenders shall make suchpayments between themselves as the Agent shall require to ensure that aftertaking into account such payments, any such loss is shared between the FacilityB Lenders and the Ancillary Lenders pro rata to the amount which theirrespective exposures, whether drawn or undrawn, bore to their total exposure,whether drawn or undrawn, as at the Loss Sharing Date.

 

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**SECTION 11**

 

**ADMINISTRATION**

 

40.                         **Paymentmechanics**

 

40.1                  **Paymentsto 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 40.10 (*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)                           Payment shall be made to such account in the principal financial centreof the country of that currency (or, in relation to euro, in the principalfinancial centre in a Participating Member State or London) with such bank asthe Agent specifies.

 

40.2                  **Distributionsby the Agent**

 

Each payment received by the Agent under theFinance Documents for another Party shall, subject to Clause 40.3 (*Distributions to**an**Obligor*)and Clause 40.4 (*Clawback*) andClause 40.10 (*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).

 

40.3                  **Distributionsto an Obligor**

 

The Agent and the Security Agent may (with theconsent of the Obligor or in accordance with Clause 41 (*Set-off*)) apply any amount received by itfor that Obligor in or towards payment (on the date and in the currency andfunds of receipt) of any amount due from that Obligor under the FinanceDocuments or in or towards purchase of any amount of any currency to be so applied.

 

40.4                  **Clawback**

 

(a)                           Where a sum is to be paid to the Agent or the Security Agent under 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 the Agent or the Security Agent pays an amount to another Party andit proves to be the case that it had not actually received that amount, thenthe Party to whom that amount (or the proceeds of any related exchangecontract) was paid shall on demand refund the same to the Agent or, as the casemay be, the Security Agent together with interest on that amount from the dateof payment to the date of receipt by the Agent or, as the case may be, theSecurity Agent, calculated by it to reflect its cost of funds.

 

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40.5                  **Partialpayments**

 

(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 14.4 (*Claims under aLetter of Credit or Bank Guarantee*) and 14.5 (*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 shall not make any suchpayments to any Ancillary Lender prior to the Agent delivering a notice to theCompany pursuant to paragraphs (a) (ii) or (a) (iv) ofClause 33.16 (*Acceleration*) or any date onwhich the Facilities are cancelled pursuant to Clause 18.3 (*Change ofcontrol*).

 

(b)                           The Agent shall, if so directed by the Majority Lenders, vary the orderset out in paragraphs (a)(ii) to (iv) above.

 

(c)                            Paragraphs (a) and (b) above will override any appropriationmade by an Obligor.

 

40.6                  **Noset-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.

 

40.7                  **BusinessDays**

 

(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)                           During any extension of the due date for payment of any principal orUnpaid Sum under this Agreement interest is payable on the principal or UnpaidSum at the rate payable on the original due date.

 

40.8                  **Currencyof 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)                           A repayment of a Utilisation or Unpaid Sum or a part of a Utilisation orUnpaid Sum shall be made in the currency in which that Utilisation or UnpaidSum is denominated 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 Taxes shall be made in thecurrency in which the costs, expenses or Taxes are incurred.

 

(e)                            Any amount expressed to be payable in a currency other than the BaseCurrency shall be paid in that other currency.

 

40.9                  **Change ofcurrency**

 

(a)                           Unless otherwise prohibited by law, if more than one currency orcurrency unit are at the same time recognised by the central bank of anycountry as the lawful currency of that country, then:

 

(i)                                      any reference in the Finance Documents to, and any obligations arisingunder the Finance Documents in, the currency of that country shall betranslated into, or paid in, the currency or currency unit of that countrydesignated by the Agent (after consultation with the Company); and

 

(ii)                                   any translation from one currency or currency unit to another shall beat the official rate of exchange recognised by the central bank for theconversion of that currency or currency unit into the other, rounded up or downby the Agent (acting reasonably).

 

(b)                           If a change in any currency of a country occurs, this Agreement will, tothe extent the Agent (acting reasonably and after consultation with theCompany) specifies to be necessary, be amended to comply with any generallyaccepted conventions and market practice in the Relevant Interbank Market andotherwise to reflect the change in currency.

 

40.10           **Paymentsto the Security Agent**

 

Notwithstanding any other provision of anyFinance Document, at any time after any Security created by or pursuant to anySecurity Document becomes enforceable, the Security Agent may require:

 

(a)                                  any Obligor to pay all sums due under any Finance Document; or

 

(b)                                  the Agent to pay all sums received or recovered from an Obligor underany Finance Document,

 

in each case as the Security Agent may directfor application in accordance with the terms of the Security Documents.

 

40.11           **Disruptionto Payment Systems etc.**

 

If either the Agent determines (in itsdiscretion) that a Disruption Event has occurred or the Agent is notified bythe Company that a Disruption Event has occurred:

 

(a)                                  the Agent may, and shall if requested to do so by the Company, consultwith the Company with a view to agreeing with the Company such changes to theoperation or administration of the Facilities as the Agent may deem necessaryin the circumstances;

 

(b)                                  the Agent shall not be obliged to consult with the Company in relationto any changes mentioned in paragraph (a) if, in its opinion, it is notpracticable to do so in the circumstances and, in any event, shall have noobligation to agree to such changes;

 

(c)                                   the Agent may consult with the Finance Parties in relation to anychanges mentioned in paragraph (a) but shall not be obliged to do so if,in its opinion, it is not practicable to do so in the circumstances;

 

116

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(d)                                  any such changes agreed upon by the Agent and the Company shall (whetheror not it is finally determined that a Disruption Event has occurred) bebinding upon the Parties as an amendment to (or, as the case may be, waiver of)the terms of the Finance Documents notwithstanding the provisions of Clause 46(*Amendments and Waivers*);

 

(e)                                   the Agent shall not be liable for any damages, costs or losseswhatsoever (including, without limitation for negligence, gross negligence orany other category of liability whatsoever but not including any claim based onthe fraud of the Agent) arising as a result of its taking, or failing to take,any actions pursuant to or in connection with this Clause 40.11; and

 

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

 

41.                         **Set-off**

 

A Finance Party may set off any maturedobligation due from an Obligor under the Finance Documents (to the extentbeneficially owned by that Finance Party) against any matured obligation owedby that Finance Party to that Obligor, regardless of the place of payment,booking branch or currency of either obligation.  If the obligations are in differentcurrencies, the Finance Party may convert either obligation at a market rate ofexchange in its usual course of business for the purpose of the set-off.

 

42.                         **Notices**

 

42.1                  **Communicationsin writing**

 

Any communication to be made under or inconnection with the Finance Documents shall be made in writing and, unlessotherwise stated, may be made by fax or letter.

 

42.2                  **Addresses**

 

The address and fax number (and the departmentor officer, if any, for whose attention the communication is to be made) ofeach Party for any communication or document to be made or delivered under orin connection with the Finance Documents is:

 

(a)                                  in the case of the Company, that identified with its name in thesignature pages below;

 

(b)                                  in the case of each Lender, each Ancillary Lender or any other OriginalObligor, that notified in writing to the Agent on or prior to the date on whichit becomes a Party; and

 

(c)                                   in the case of the Agent, the Issuing Bank and the Security Agent, thatidentified with its name in the signature pages below,

 

or any substitute address, fax number ordepartment or officer as the Party may notify to the Agent (or the Agent maynotify to the other Parties, if a change is made by the Agent) by not less thanfive Business Days’ notice.

 

42.3                  **Delivery**

 

(a)                           Any communication or document made or delivered by one person to anotherunder or in connection with the Finance Documents will only be effective:

 

(i)                                      if by way of fax, when received in legible form; or

 

117

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(ii)                                   if by way of letter, when it has been left at the relevant address orfive Business Days after being deposited in the post postage prepaid in anenvelope addressed to it at that address,

 

and, if a particular department or officer isspecified as part of its address details provided under Clause 42.2 (*Addresses*), if addressed to thatdepartment or officer.

 

(b)                           Any communication or document to be made or delivered to the Agent orthe Security Agent will be effective only when actually received by the Agentand then only if it is expressly marked for the attention of the department orofficer identified with its signature below (or any substitute department orofficer as it shall specify for this purpose).

 

(c)                            All notices from or to an Obligor shall be sent through the Agent.

 

(d)                           Any communication or document made or delivered to the Company inaccordance with this Clause will be deemed to have been made or delivered toeach of the Obligors.

 

42.4                  **Notificationof address and fax number**

 

Promptly upon receipt of notification of anaddress and fax number or change of address or fax number pursuant to Clause 42.2(*Addresses*) or changing its ownaddress or fax number, the Agent shall notify the other Parties.

 

42.5                  **Electroniccommunication**

 

(a)                           Any communication to be made between the Agent and a Lender or theCompany under or in connection with the Finance Documents may be made byelectronic mail or other electronic means, if the Agent and the relevant Lenderor the Company:

 

(i)                                      agree that, unless and until notified to the contrary, this is to be anaccepted 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 Agent and a Lender or theCompany will be effective only when actually received in readable form and inthe case of any electronic communication made by a Lender or the Company to theAgent only if it is addressed in such a manner as the Agent shall specify forthis purpose.

 

42.6                  **Englishlanguage**

 

(a)                           Any notice given under or in connection with any Finance Document mustbe in English.

 

(b)                           All other documents provided under or in connection with any FinanceDocument must be:

 

(i)                                      in English; or

 

(ii)                                   if not in English, and if so required by the Agent, accompanied by acertified English translation and, in this case, the English translation willprevail unless the document is a constitutional, statutory or other officialdocument.

 

118

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43.                         **Calculationsand certificates**

 

43.1                  **Accounts**

 

In any litigation or arbitration proceedingsarising out of or in connection with a Finance Document, the entries made inthe accounts maintained by a Finance Party are prima facie evidence of thematters to which they relate.

 

43.2                  **Certificatesand Determinations**

 

Any certification or determination by a FinanceParty of a rate or amount under any Finance Document is, in the absence ofmanifest error, conclusive evidence of the matters to which it relates.

 

43.3                  **Day countconvention**

 

Any interest, commission or fee accruing undera Finance Document will accrue from day to day and is calculated on the basisof the actual number of days elapsed and a year of 360 days or, in any casewhere the practice in the Relevant Interbank Market differs, in accordance withthat market practice.

 

44.                         **Partialinvalidity**

 

If, at any time, any provision of the FinanceDocuments is or becomes illegal, invalid or unenforceable in any respect underany law of any jurisdiction, neither the legality, validity or enforceabilityof the remaining provisions nor the legality, validity or enforceability ofsuch provision under the law of any other jurisdiction will in any way beaffected or impaired.

 

45.                         **Remediesand waivers**

 

No failure to exercise, nor any delay inexercising, on the part of any Finance Party, any right or remedy under theFinance Documents shall operate as a waiver, nor shall any single or partialexercise of any right or remedy prevent any further or other exercise or theexercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative andnot exclusive of any rights or remedies provided by law.

 

46.                         **Amendmentsand waivers**

 

46.1                  **Requiredconsents**

 

(a)                           Subject to Clause 46.2 (*Exceptions*)any term of the Finance Documents may be amended or waived only with theconsent of the Majority Lenders and the Obligors and any such amendment orwaiver will be binding on all Parties.

 

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

 

46.2                  **Exceptions**

 

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

 

(i)                                      the definition of “Majority Lenders” in Clause 8.1 (*Definitions*);

 

(ii)                                   an extension to the date of payment of any amount under the FinanceDocuments (other than an amount owing under Clause 18.5 (*Mandatoryprepayment — Net Sale Proceeds*) or Clause 18.7 (*Mandatoryprepayment — Insurance Proceeds*);

 

119

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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 in accordance withClause 35 (*Changes to the**Obligors*);

 

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

 

(vii)                            Clause 9.2 (*Finance Parties’ rightsand obligations*), Clause 11.3 (*Change of Control*),Clause 34 (*Changes to the Lenders*),Clause 39 (*Sharing among the Finance Parties*)or this Clause 46; or

 

(viii)                         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),

 

shall not be made without the prior consent ofall the Lenders.

 

(b)                           An amendment or waiver which relates to the rights or obligations of theAgent, the Security Agent, the Issuing Bank, any Ancillary Lender or theArranger may not be effected without the consent of the Agent, the SecurityAgent, the Issuing Bank, any Ancillary Lender or, as the case may be theArranger.

 

47.                         **Counterparts**

 

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

 

120

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**SECTION 12**

 

**GOVERNINGLAW AND ENFORCEMENT**

 

48.                         **Governinglaw**

 

This Agreement is governed by English law.

 

49.                         **Enforcement**

 

49.1                  **Jurisdiction**

 

(a)                           The courts of England have exclusive jurisdiction to settle any disputearising out of or in connection with this Agreement (including a disputeregarding the existence, validity or termination of this Agreement) (a “**Dispute**”).

 

(b)                           The Parties agree that the courts of England are the most appropriateand convenient courts to settle Disputes and accordingly no Party will argue tothe contrary.

 

(c)                            This Clause 49.1 is for the benefit of the Finance Parties only.  As a result, no Finance Party shall beprevented from taking proceedings relating to a Dispute in any other courtswith jurisdiction.  To the extent allowedby law, the Finance Parties may take concurrent proceedings in any number ofjurisdictions.

 

49.2                  **Serviceof process**

 

Without prejudice to any other mode of serviceallowed under any relevant law, each Obligor (other than an Obligorincorporated 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 the relevant Obligor ofthe process will not invalidate the proceedings concerned.

 

**This Agreement has beenentered into on the date stated at the beginning of this Agreement.**

 

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**SCHEDULE 4**

** **

**THE ORIGINAL PARTIES**

 

**PART I**

** **

**THE ORIGINAL OBLIGORS**

 
| **Name of Original Borrower** | ** ** | **Registration number (or equivalent, if any)** |
|----------------------------------------------|------------|--------------------------------------------------------------------------|
| ** **                                   | ** ** | ** **                                                               |
| SACHTLEBEN CHEMIE GMBH                       |       | HR B 1 96 69                                                             |
|                                         |       |                                                                     |
| FINNISH HOLDCO                               |       | 2196924-0                                                                |
|                                         |       |                                                                     |
| KEMIRA PIGMENTS OY                           |       | 0948159-2                                                                |

 
| **Name of Original Guarantor** | ** ** | **Registration number (or equivalent, if any)** |
|-----------------------------------------------|------------|--------------------------------------------------------------------------|
| ** **                                    | ** ** | ** **                                                               |
| SACHTLEBEN CHEMIE GMBH                        |       | HR B 1 96 69                                                             |
|                                          |       |                                                                     |
| FINNISH HOLDCO                                |       | 2196924-0                                                                |
|                                          |       |                                                                     |
| KEMIRA PIGMENTS OY                            |       | 0948159-2                                                                |

 

122

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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                                          |

 

123

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**SCHEDULE 5**

** **

**CONDITIONS PRECEDENT**

** **

**PART I**

** **

**CONDITIONS PRECEDENT TO INITIAL UTILISATION**

 

1.                                **Original Obligors**

 

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

 

(b)                           A certified copy of the constitutional documents of each OriginalObligor incorporated in Finland, being a copy of an extract from the FinnishTrade Register and articles of association of recent date not dated earlierthan 14 days prior to the date of this Agreement.

 

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

 

(d)                           A copy of a resolution of the shareholders of each Original Obligorincorporated in Germany:

 

(i)                                      approving the terms of, and the transactions contemplated by, theFinance Documents to which it is a party and resolving that it execute theFinance Documents to which it is a party; and

 

(ii)                                   instructing the managing director(s) of eachOriginal Obligor to execute the Finance Documents to which it is a party.

 

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

 

(i)                                      approving the terms of, and the transactions contemplated by, theFinance Documents to which it is a party and resolving that it execute theFinance Documents to which it is a Party;

 

(ii)                                   authorising a specified person or persons to execute the FinanceDocuments to which it is a party on its behalf; and

 

(iii)                                authorising a specified person or persons, on its behalf, to sign and/ordespatch all documents and notices (including, if relevant, any UtilisationRequest and Selection Notice) to be signed and/or despatched by it under or inconnection with the Finance Documents to which it is a party.

 

(f)                             A copy of a resolution signed by all the holders of the issued shares ineach Original Guarantor incorporated in a jurisdiction other than Germany,approving the terms of, and the transactions contemplated by, the FinanceDocuments to which that Original Guarantor is a party.

 

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

 

124

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(h)                           A certificate of the Company (signed by a director) confirming thatborrowing or guaranteeing, as appropriate, the Total Commitments would notcause any borrowing, guaranteeing or similar limit binding on any OriginalObligor to be exceeded.

 

(i)                               A certificate of an authorised signatory of the relevant OriginalObligor certifying that each copy document relating to it specified in this Part Iof Schedule 5 is correct, complete and in full force and effect as at a date noearlier than the date of this Agreement.

 

2.                                **Security**

 

Confirmation from the Security Agent that ithas received each of the following documents in form and substance satisfactoryto it:

 

(a)                           A copy of each Security Document, duly executed by the parties to it;

 

(b)                           All documents and/or evidence of all other steps, required to perfectthose Security Documents (to the extent so required pursuant to the terms ofthe relevant Security Document) as advised to the Security Agent by its legaladvisers in each relevant jurisdiction.

 

3.                                **Subordination Agreement**

 

A copy of the Subordination Agreement, dulyexecuted by the parties to it.

 

4.                                **Legal opinions**

 

(a)                           A legal opinion of Linklaters LLP, legal advisers to the Arranger andthe Agent in England and Germany substantially in the form distributed to theOriginal Lenders prior to delivery.

 

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

 

(c)                            A legal opinion of Hannes Snellman Attorneys at Law Ltd, legal advisersto the Arranger and the Agent in Finland, substantially in the form distributedto the Original Lenders prior to delivery.

 

5.                                **Other documents and evidence**

 

(a)                           Evidence that any process agent referred to in Clause 49.2 (*Service of process*) has accepted itsappointment.

 

(b)                           A copy of any other Authorisation or other document, opinion orassurance which the Agent considers to be necessary (if it has notified theCompany accordingly) in connection with the entry into and performance of thetransactions contemplated by any Finance Document or for the validity andenforceability of any Finance Document.

 

(c)                            The Original Financial Statements of each Original Obligor.

 

(d)                           Evidence that the fees, costs and expenses then due from the Companypursuant to Clause 22 (*Fees*) andClause 27 (*Costs and expenses*)have been paid or will be paid by the first Utilisation Date.

 

(e)                            Evidence that at the date of initial Utilisation, Kemira Oy owns 39% andRockwood Specialties Group GmbH owns 61% of the issued share capital of theCompany.

 

125

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(f)                             A copy of the Structuring Report.

 

(g)                            A copy of:

 

(i)                                      the KPMG Financial Due Diligence Report; and

 

(ii)                                   the PwC Financial Due Diligence Report,

 

together with all related reliance letters andagreements.

 

(h)                           A copy of any Authorisation required by the Owners to enter into andperform their obligations under the JV Documents.

 

(i)                               Evidence that the Kemira Guarantee has been released in full or will bereleased in full prior to initial Utilisation of any Facility.

 

(j)                              Evidence that the Kemira Pledge has been released in full or will bereleased in full prior to initial Utilisation of any Facility.

 

(k)                           A copy of each agreement documenting each Shareholder Loan or, where nocopy is available, a written confirmation from the relevant creditor of eachShareholder Loan as to the outstanding principal amount of that ShareholderLoan on the date of the first Utilisation Request.

 

(l)                               A copy of the Hedging Letter, duly executed by the parties to it.

 

(m)                       Acopy of the Base Case cash flow model.

 

(n)                           A copy of pro forma condensed consolidated financial statements of theCompany showing five year projections.

 

(o)                           The certificate referred to in paragraph (a)(i) of Clause 4.2 (*Further conditions precedent*).

 

(p)                           A list of Material Subsidiaries in existence at the date of initialUtilisation.

 

(q)                           An executed copy of each JV Document.

 

(r)                              Evidence that all Existing Debt which is to be repaid on the date offirst Utilisation of Facility A will be repaid and cancelled in full on orbefore the date of such Utilisation.

 

(s)                             A structure chart of the Group.

 

(t)                              A certificate of an authorised signatory of the Company certifying thatsteps 1 -17 (except for the repayment of Existing Debt), as set out in thesection of the Structuring Report entitled “JV — Structure for Europe”, havebeen completed in accordance with the Structuring Report.

 

(u)                           A copy of the KPMG Supplementary Report.

 

126

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**PART II**

** **

**CONDITIONS PRECEDENT REQUIRED TO BEDELIVERED BY AN ADDITIONAL OBLIGOR**

 

1.           AnAccession Letter, duly executed by the Additional Obligor and the Company.

 

2.           Acertified copy of the constitutional documents of the Additional Obligormeaning, in respect of an Additional Obligor incorporated in Finland, a copy ofan extract from the Finnish Trade Register and articles of association ofrecent date not dated earlier than 14 days prior to the date of its accession.

 

3.           If the Additional Obligor is incorporated in Germany, a certified excerpt from the commercial register of the AdditionalObligor of recent date not dated earlier than 14 days prior to the date of itsaccession.

 

4.           Ifcustomary and so required by the Agent, a copy of a resolution of the board ofdirectors of the Additional Obligor:

 

(a)             approvingthe terms of, and the transactions contemplated by, the Accession Letter andthe Finance Documents and resolving that it execute the Accession Letter;

 

(b)             authorisinga specified person or persons to execute the Accession Letter on its behalf;and

 

(c)             authorisinga specified person or persons, on its behalf, to sign and/or despatch all otherdocuments and notices (including, in relation to an Additional Borrower, anyUtilisation Request or Selection Notice) to be signed and/or despatched by itunder or in connection with the Finance Documents.

 

5.           Aspecimen of the signature of each person authorised by the resolution referredto in paragraph 4 above.

 

6.           Ifthe Additional Guarantor is incorporated in England and Wales, or if customaryand so required by the Agent, a copy of a resolution signed by all the holdersof the issued shares of the Additional Guarantor, approving the terms of, andthe transactions contemplated by, the Finance Documents to which the AdditionalGuarantor is a party.

 

7.           Acertificate of the Additional Obligor (signed by a director) confirming thatborrowing or guaranteeing, as appropriate, the Total Commitments would notcause any borrowing, guaranteeing or similar limit binding on it to beexceeded.

 

8.           Acertificate of an authorised signatory of the Additional Obligor certifyingthat each copy document listed in this Part II of Schedule 5 is correct,complete and in full force and effect as at a date no earlier than the date ofthe Accession Letter.

 

9.           Acopy of any other Authorisation or other document, opinion or assurance whichthe Agent considers to be necessary or desirable in connection with the entryinto and performance of the transactions contemplated by the Accession Letteror for the validity and enforceability of any Finance Document.

 

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10.         Ifavailable, the latest unaudited financial statements of the Additional Obligor.

 

11.         Alegal opinion of Linklaters LLP, legal advisers to the Arranger and the Agentin England.

 

12.         Ifthe Additional Obligor is incorporated in a jurisdiction other than England andWales, a legal opinion of the legal advisers to the Arranger and the Agent inthe jurisdiction in which the Additional Obligor is incorporated.

 

13.         Ifthe proposed Additional Obligor is incorporated in a jurisdiction other thanEngland and Wales, evidence that the process agent specified in Clause 49.2 (*Service of process*), if not an Obligor,has accepted its appointment in relation to the proposed Additional Obligor.

 

14.         SupplementalSecurity Documents granting security over all material assets of the AdditionalObligor, duly executed by the Additional Obligor together with such otherdocuments relating to the security granted pursuant to such supplementalSecurity Documents as the Security Agent may require.

 

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**SCHEDULE 6**

 

**REQUESTS**

 

**PART I******

**UTILISATION REQUEST**

 

From:      [Name of relevant Borrower]

 

To:          Merchant Banking, Skandinaviska Enskilda Banken AB (publ)

 

Dated:

 

Dear Sirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH**

**- €330,000,000 Facility Agreementdated 17****June 2008****(the “Agreement”)**

 

1.           Werefer to the Agreement. This is a Utilisation Request. Terms defined in theAgreement have the same meaning in this Utilisation Request unless given adifferent meaning in this Utilisation Request.

 

2.           Wewish to borrow a Loan on the following terms:

 
| Proposed Utilisation Date: |   | [                   ]  or, if that is not a Business Day, the next Business Day) |
|----------------------------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                       |   |                                                                                                                                                                            |
| Facility to be utilised:   |   | [Facility A]/[Facility B]*                                                                                                                                                      |
|                       |   |                                                                                                                                                                            |
| Currency of Loan:          |   | [                   ]                                                            |
|                       |   |                                                                                                                                                                            |
| Amount:                    |   | [                   ]  or, if less, the Available Facility                       |
|                       |   |                                                                                                                                                                            |
| Interest Period:           |   | [                   ]                                                            |

 

3.           Weconfirm that each condition specified in Clause 11.2 (*Further conditions precedent*) is satisfiedon the date of this Utilisation Request (to the extent required to be satisfiedpursuant to that Clause).

 

4.           Theproceeds of this Loan should be credited to [account].

 

5.           ThisUtilisation Request is irrevocable.

 
| Yours faithfully |
|------------------|
|             |
|             |   |

 

Name and title:

 

authorised signatory for

 

[name of relevant Borrower]

 

----

*    Delete as appropriate

 

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**PART II**

** **

**SELECTION NOTICE**

**APPLICABLE TO A FACILITY A LOAN**

 

From:      [Name of relevant Borrower]

 

To:          Merchant Banking, Skandinaviska Enskilda Banken AB (publ)

 

Dated:

 

Dear Sirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH****- €330,000,000 Facility Agreementdated 17****June 2008****(the “Agreement”)**

 

1.           Werefer to the Agreement. This is a Selection Notice. Terms defined in theAgreement have the same meaning in this Selection Notice unless given adifferent meaning in this Selection Notice.

 

2.           Werefer to the following Facility A Loan[s] in [*identifycurrency*] with an Interest Period ending on[                   ].*

 

3.           Werequest that the above Facility A Loan[s] be divided into[                   ]Facility A Loans with the following Base Currency Amounts and Interest Periods:**

 

or

 

We request that the next Interest Period forthe above Facility A Loan[s] is[                   ].***

 

4.           ThisSelection Notice is irrevocable.

 
| Yours faithfully |
|------------------|
|             |
|             |   |

 

Name and title:

 

authorised signatory for

 

the Company on behalf of[Name of relevant Borrower]

 

----

| *      |   | Insert details of allFacility A Loans in the same currency which have an  Interest Period ending on the same date. |
|--------|--------|--------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                               |
| **     |   | Use this option if division of Loans is  requested.                                                                |
|   |   |                                                                                                               |
| ***    |   | Use this option if sub-division is not  required.                                                                  |

 

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**PART III**

** **

**UTILISATION REQUEST**

**LETTERS OF CREDIT AND BANK GUARANTEES**

 

From:      [Name of relevant Borrower]

 

To:          Merchant Banking, Skandinaviska Enskilda Banken AB (publ)

 

Dated:

 

Dear Sirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH****- €330,000,000 Facility Agreementdated****17 June 2008****(the “Agreement”)**

 

1.           Wewish to arrange for a [Letter of Credit/Bank Guarantee] to be issued by theIssuing Bank on the following terms:

 
| Proposed Utilisation Date: |   | [                   ]  (or, if that is not a Business Day, the next Business Day) |
|----------------------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                       |   |                                                                                                                                                                             |
| Facility to be utilised:   |   | Facility B                                                                                                                                                                       |
|                       |   |                                                                                                                                                                             |
| Amount:                    |   | [                   ]  or, if less, the Available Facility                        |
|                       |   |                                                                                                                                                                             |
| Beneficiary:               |   | [                   ]                                                             |
|                       |   |                                                                                                                                                                             |
| Term or Expiry Date:       |   | [                   ]                                                             |

 

2.           Weconfirm that each condition specified in Clause 13.6 (*Issue of Letters of Credit or Bank Guarantees*)is satisfied on the date of this Utilisation Request.

 

3.           Weattach a copy of the proposed [Letter of Credit/Bank Guarantee]

 

4.           ThisUtilisation Request is irrevocable.

 

Delivery Instructions:

 

[*specifydelivery instructions*]

 
| Yours faithfully |
|------------------|
|             |
|             |   |

 

Name and title:

 

authorised signatory for

 

the Company on behalf of[Name of relevant Borrower]

 

131

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**PART IV******

**ANCILLARY FACILITY REQUEST**

 
| From:  |   | [Company]                                                 |
|--------|--------|-----------------------------------------------------------|
|   |   |                                                      |
| To:    |   | Merchant Banking, Skandinaviska Enskilda Banken AB (publ) |

 

Dated:

 

Dear Sirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH****- €330,000,000 Facility Agreementdated 17****June 2008****(the “Agreement”)**

 

1.           We refer to the Agreement. This is an Ancillary Facility Request. Termsdefined in the Agreement have the same meaning in this Ancillary FacilityRequest unless given a different meaning in this Ancillary Facility Request.

 

2.           We wish to establish an Ancillary Facility on the following terms:

 
| Proposed Borrower:                     |   | [                   ] |
|----------------------------------------|--------|----------------------------------------------------------------------------------------------------------------------|
|                                   |   |                                                                                                                 |
| Proposed Ancillary Lender:             |   | [                   ] |
|                                   |   |                                                                                                                 |
| Type or types of facility:             |   | [                   ] |
|                                   |   |                                                                                                                 |
| Commencement Date:                     |   | [                   ] |
|                                   |   |                                                                                                                 |
| Expiry date:                           |   | [                   ] |
|                                   |   |                                                                                                                 |
| Ancillary Commitment amount:           |   | [                   ] |
|                                   |   |                                                                                                                 |
| Currency/ies available:                |   | [                   ] |
|                                   |   |                                                                                                                 |
| [Other details required by the Agent:] |   | [                   ] |

 

3.           We confirm that each condition specified in paragraphs (a) and (b) ofClause 9.4 (*Grant of Ancillary Facility*)is satisfied on the date of this Ancillary Facility Request.

 

4.           This Ancillary Facility Request is irrevocable.

 
| Yours faithfully |
|------------------|
|             |
|             |   |

 

Name and title:

 

authorised signatory for[*Company*]

 

132

----

 

**SCHEDULE 7**

** **

**MANDATORY COST FORMULAE**

 

1.           TheMandatory Cost is an addition to the interest rate to compensate Lenders forthe cost of compliance with (a) the requirements of the Bank of Englandand/or the Financial Services Authority (or, in either case, any otherauthority which replaces all or any of its functions) or (b) therequirements of the European Central Bank.

 

2.           Onthe first day of each Interest Period (or as soon as possible thereafter) theAgent shall calculate, as a percentage rate, a rate (the “**Additional Cost Rate**”) for each Lender, inaccordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Agent as a weighted averageof the Lenders’ Additional Cost Rates (weighted in proportion to the percentageparticipation of each Lender in the relevant Loan) and will be expressed as apercentage rate per annum.

 

3.           TheAdditional Cost Rate for any Lender lending from a Facility Office in aParticipating Member State will be the percentage notified by that Lender tothe Agent. This percentage will be certified by that Lender in its notice tothe Agent to be its reasonable determination of the cost (expressed as apercentage of that Lender’s participation in all Loans made from that FacilityOffice) of complying with the minimum reserve requirements of the EuropeanCentral Bank in respect of loans made from that Facility Office.

 

4.           The Additional Cost Rate forany Lender lending from a Facility Office in the United Kingdom will be calculatedby the Agent as follows:

 

(a)            in relation to a sterlingLoan:

 
|  | per cent. per annum |
|--|---------------------|

 

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

 
|  | per cent. per annum. |
|--|----------------------|

 

Where:

 

A             is the percentage of Eligible Liabilities (assumingthese to be in excess of any stated minimum) which that Lender is from time totime required to maintain as an interest free cash ratio deposit with the Bankof England to comply with cash ratio requirements.

 

B             is the percentage rate of interest (excluding theMargin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additionalrate of interest specified in paragraph (a) of Clause 19.3 (*Default interest*)) payable for therelevant Interest Period on the Loan.

 

C             is the percentage (if any) of Eligible Liabilitieswhich that Lender is required from time to time to maintain as interest bearingSpecial Deposits with the Bank of England.

 

D             is the percentage rate per annum payable by the Bankof England to the Agent on interest bearing Special Deposits.

 

133

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E              is designed to compensate Lenders for amounts payableunder the Fees Rules and is calculated by the Agent as being the averageof the most recent rates of charge supplied by the Reference Banks to the Agentpursuant to paragraph 7 below and expressed in pounds per £1,000,000.

 

5.           Forthe purposes of this Schedule:

 

(a)         “**Eligible Liabilities**” and “**Special Deposits**” have the meanings givento them from time to time under or pursuant to the Bank of England Act 1998 or(as may be appropriate) by the Bank of England;

 

(b)         “**Fees Rules**” means the rules onperiodic fees contained in the FSA Supervision Manual or such other law orregulation as may be in force from time to time in respect of the payment offees for the acceptance of deposits;

 

(c)         “**Fee Tariffs**” means the fee tariffsspecified in the Fees Rules under the activity group A.1 Deposit acceptors(ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules buttaking into account any applicable discount rate); and

 

(d)         “**Tariff Base**” has the meaning given to itin, and will be calculated in accordance with, the Fees Rules.

 

6.           Inapplication of the above formulae, A, B, C and D will be included in theformulae as percentages (i.e. 5 per cent. will be included in the formula as 5and not as 0.05).  A negative resultobtained by subtracting D from B shall be taken as zero.  The resulting figures shall be rounded tofour decimal places.

 

7.           Ifrequested by the Agent, each Reference Bank shall, as soon as practicable afterpublication by the Financial Services Authority, supply to the Agent, the rateof charge payable by that Reference Bank to the Financial Services Authoritypursuant to the Fees Rules in respect of the relevant financial year ofthe Financial Services Authority (calculated for this purpose by that ReferenceBank as being the average of the Fee Tariffs applicable to that Reference Bankfor that financial year) and expressed in pounds per £1,000,000 of the TariffBase of that Reference Bank.

 

8.           EachLender shall supply any information required by the Agent for the purpose ofcalculating its Additional Cost Rate.  Inparticular, but without limitation, each Lender shall supply the followinginformation on or prior to the date on which it becomes a Lender:

 

(a)            thejurisdiction of its Facility Office; and

 

(b)           anyother information that the Agent may reasonably require for such purpose.

 

Each Lender shall promptly notify the Agent ofany change to the information provided by it pursuant to this paragraph.

 

9.           Thepercentages of each Lender for the purpose of A and C above and the rates ofcharge of each Reference Bank for the purpose of E above shall be determined bythe Agent based upon the information supplied to it pursuant to paragraphs 7and 8 above and on the assumption that, unless a Lender notifies the Agent tothe contrary, each Lender’s obligations in relation to cash 

 

134

----

 

ratiodeposits and Special Deposits are the same as those of a typical bank from itsjurisdiction of incorporation with a Facility Office in the same jurisdictionas its Facility Office.

 

10.         TheAgent shall have no liability to any person if such determination results in anAdditional Cost Rate which over or under compensates any Lender and shall beentitled to assume that the information provided by any Lender or ReferenceBank pursuant to paragraphs 3, 7 and 8 above is true and correct in allrespects.

 

11.         TheAgent shall distribute the additional amounts received as a result of theMandatory Cost to the Lenders on the basis of the Additional Cost Rate for eachLender based on the information provided by each Lender and each Reference Bankpursuant to paragraphs 3, 7 and 8 above.

 

12.         Anydetermination by the Agent pursuant to this Schedule in relation to a formula,the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lendershall, in the absence of manifest error, be conclusive and binding on allParties.

 

13.         TheAgent may from time to time, after consultation with the Company and theLenders, determine and notify to all Parties any amendments which are requiredto be made to this Schedule in order to comply with any change in law,regulation or any requirements from time to time imposed by the Bank ofEngland, the Financial Services Authority or the European Central Bank (or, inany case, any other authority which replaces all or any of its functions) andany such determination shall, in the absence of manifest error, be conclusiveand binding on all Parties.

 

135

----

 

**SCHEDULE 8**

** **

**FORM OF TRANSFER CERTIFICATE**

 

To:          Merchant Banking, Skandinaviska Enskilda Banken AB (publ) as Agent

 

From:      [                   ](the “**Existing Lender**”) and[                   ](the “**New Lender**”)

 

Dated:

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH****- €330,000,000 Facility Agreementdated 17****June 2008****(the “Agreement”)**

 

1.           Werefer to the Agreement. This is a Transfer Certificate. Terms defined in theAgreement have the same meaning in this Transfer Certificate unless given adifferent meaning in this Transfer Certificate.

 

2.           Werefer to Clause 34.5 (*Procedure for transfer*):

 

(a)            TheExisting Lender and the New Lender agree to the Existing Lender transferring tothe New Lender by novation all or part of the Existing Lender’s Commitment,rights and obligations referred to in the Schedule in accordance with Clause 34.5(*Procedure for transfer*).

 

(b)           Theproposed Transfer Date is[                   ].

 

(c)            TheFacility Office and address, fax number and attention details for notices ofthe New Lender for the purposes of Clause 42.2 (*Addresses*) are set out in the Schedule.

 

3.           TheNew Lender expressly acknowledges the limitations on the Existing Lender’sobligations set out in paragraph (c) of Clause 34.4 (*Limitation of responsibility of Existing Lenders*).

 

4.           ThisTransfer Certificate 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 this Transfer Certificate.

 

5.           ThisTransfer Certificate is governed by English law.

 

136

----

 

**THESCHEDULE**

**Commitment/rightsand obligations to be transferred**

 

[*insert relevant details*]

 

[Facility Office address, fax number andattention details for notices and account details for payments.]

 

 
| [Existing Lender] | [New Lender ] |
|-------------------|---------------|
|              |          |
| By:               | By:           |

 

 

This Transfer Certificate is accepted by theAgent and the Transfer Date is confirmed as [                   ].

 

Merchant Banking, Skandinaviska Enskilda Banken AB(publ)

 

By:

 

137

----

 

**SCHEDULE 9**

** **

**FORM OF ACCESSION LETTER**

 

To:          Merchant Banking, Skandinaviska Enskilda Banken AB (publ) as Agent

 

From:      [Subsidiary]and Deukalion Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH

 

Dated:

 

Dear Sirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH****- €330,000,000 Facility Agreementdated 17****June 2008****(the “Agreement”)**

 

1.           Werefer to the Agreement. This is an Accession Letter. Terms defined in theAgreement have the same meaning in this Accession Letter unless given adifferent meaning in this Accession Letter.

 

2.           [Subsidiary]agrees to become an Additional [Borrower]/[Guarantor] and to be bound by theterms of the Agreement as an Additional [Borrower]/[Guarantor] pursuant to[Clause 35.2 (*Additional Borrowers*)]/[Clause35.4 (*Additional Guarantors*)] ofthe Agreement.  [Subsidiary] is a companyduly incorporated under the laws of [*name of relevantjurisdiction*].

 

3.           [Subsidiary’s]administrative details are as follows:

 

Address:

 

Fax No:

 

Attention:

 

4.           ThisAccession Letter is governed by English law.

 

This Guarantor Accession Letter has beendelivered as a deed on the date stated at the beginning of this GuarantorAccession Letter.

 

 
|            |   |            |
|-----------------|--------|-----------------|
|            |   |            |
| Name and title: |   | Name and title: |

 

Deukalion Einhundertvierundzwanzigste 
| Vermögensverwaltungs - GmbH |   | [Subsidiary] |
|----------------------------------|--------|--------------|

 

138

----

 

**SCHEDULE 10**

** **

**SECURITY AGENCY PROVISIONS**

 

1.           **Definitions**

 

In this Schedule:

 

“**SecurityProperty**” means all right, title and interest in, to and under anySecurity Document, including:

 

(a)            theassets expressed to be subject to the Security created pursuant to any SecurityDocument;

 

(b)           thebenefit of the undertakings in any Security Document; and

 

(c)            allsums received or recovered by the Security Agent pursuant to any SecurityDocument and any assets representing the same.

 

2.           **Declaration of trust**

 

(a)         TheSecurity Agent and each other Finance Party agree that the Security Agent shallhold the Security Property in trust for the benefit of the Finance Parties onthe terms of the Finance Documents.

 

(b)         Subjectto paragraph (c) below, paragraph (a) above shall not apply to anySecurity Document which is expressed to be or is construed to be governed byany law other than English law or any other law from time to time designated bythe Security Agent and an Obligor or any Security Property arising under anysuch Security Document.

 

(c)         Paragraph(b) above shall not affect or limit paragraph (d) of Clause 37 (*Parallel Debt*) nor the applicability of the provisions ofthis Schedule with respect to any Security Document which is expressed to be oris construed to be governed by any law other than English law or any other lawfrom time to time designated by the Security Agent and an Obligor or anySecurity Property arising under any such Security Document.

 

3.           **Defects in Security**

 

The Security Agent shall not be liable for anyfailure or omission to perfect, or defect in perfecting, the Security createdpursuant to any Security Document, including:

 

(a)            failureto obtain any Authorisation for the execution, validity, enforceability oradmissibility in evidence of any Security Document; or

 

(b)           failureto effect or procure registration of or otherwise protect or perfect any of theSecurity created by the Security Documents under any laws in any territory.

 

4.           **No enquiry**

 

The Security Agent may accept without enquiry,requisition, objection or investigation such title as any Obligor may have toany assets expressed to be subject to the Security created pursuant to anySecurity Document.

 

139

----

 

5.           **Retention of documents**

 

The Security Agent may hold title deeds andother documents relating to any of the assets expressed to be subject to theSecurity created pursuant to any Security Document in such manner as it seesfit (including allowing any Obligor to retain them).

 

6.           **Indemnity out of Security Property**

 

The Security Agent and every receiver,delegate, attorney, agent or other similar person appointed under any SecurityDocument may indemnify itself out of the Security Property against any cost,loss or liability incurred by it in that capacity (otherwise than by reason ofits own gross negligence or wilful misconduct).

 

7.           **Basis of distribution**

 

To enable it to make any distribution, theSecurity Agent may fix a date as at which the amount of the Liabilities is tobe calculated and may require, and rely on, a certificate from any FinanceParty giving details of:

 

(a)            anysums due or owing to any Finance Party as at that date; and

 

(b)           suchother matters as it thinks fit.

 

8.           **Rights of Security Agent**

 

The Security Agent shall have all the rights,privileges and immunities which gratuitous trustees have or may have inEngland, even though it is entitled to remuneration.

 

9.           **No duty to collect payments**

 

The Security Agent shall not have any duty:

 

(a)            toensure that any payment or other financial benefit in respect of any of theassets expressed to be subject to the Security created pursuant to any SecurityDocument is duly and punctually paid, received or collected; or

 

(b)           toensure the taking up of any (or any offer of any) stocks, shares, rights,moneys or other property accruing or offered at any time by way of interest,dividend, redemption, bonus, rights, preference, option, warrant or otherwisein respect of any of the assets expressed to be subject to the Security createdpursuant to any Security Document.

 

10.         **Perpetuity period**

 

The perpetuity period for the trusts created bythe Finance Documents shall be 80 years from the date of this Agreement.

 

140

----

 

11.         **Appropriation**

 

(a)         EachParty irrevocably waives any right to appropriate any payment to, or other sumreceived, recovered or held by, the Security Agent in or towards payment of anyparticular part of the Liabilities and agrees that the Security Agent shallhave the exclusive right to do so.

 

(b)         Paragraph(a) above will override any application made or purported to be made byany other person.

 

12.         **Investments**

 

All money received or held by the SecurityAgent under the Finance Documents may, in the name of, or under the control of,the Security Agent:

 

(a)            beinvested in any investment it may select; or

 

(b)           bedeposited at such bank or institution (including itself, any other FinanceParty or any Affiliate of any Finance Party) as it thinks fit.

 

13.         **Suspense****account**

 

Subject to paragraph 14 (*Timing of**Distributions*)below the Security Agent may:

 

(a)            holdin an interest bearing suspense account any money received by it from anyObligor; and

 

(b)           investan amount equal to the balance from time to time standing to the credit of thatsuspense account in any of the investments authorised by paragraph 12 (*Investments*) above.

 

14.         **Timing****of****Distributions**

 

Distributions by the Security Agent shall bemade as and when determined by it.

 

15.         **Order of application**

 

Subject to the rights of creditors mandatorilypreferred by law applying to companies generally, the proceeds of enforcementof the Security conferred by the Security Documents, all recoveries by theSecurity Agent under guarantees and all other amounts paid to the SecurityAgent pursuant to this Agreement shall be applied in the following order:

 

(a)            **first,**inor towards payment of any unpaid fees, costs, expenses and liabilities(including any interest thereon as provided in the Security Documents) incurredby or on behalf of the Security Agent (or any adviser, receiver, delegate,attorney or agent) and the remuneration of the Security Agent (or any adviser,receiver, delegate, attorney or agent) in connection with carrying out itsduties or exercising powers or discretions under the Security Documents or thisAgreement;

 

(b)           **second,**inor towards payment to the Agent for application towards any unpaid costs andexpenses incurred by or on behalf of any Finance Party in connection with suchenforcement, recovery or other payment pari passu between themselves;

 

141

----

 

(c)            **third,**inor towards payment to the Agent for application towards the balance of theLoans and any other Unpaid Sum;

 

(d)           **fourth,**inpayment of the surplus (if any) to the relevant Obligor or other personentitled to it.

 

16.         **Delegation**

 

(a)         TheSecurity Agent may:

 

(i)             employand pay an agent selected by it to transact or conduct any business and to doall acts required to be done by it (including the receipt and payment ofmoney);

 

(ii)            delegateto any person on any terms (including power to sub-delegate) all or any of itsfunctions; and

 

(iii)           withthe prior consent of the Majority Lenders, appoint, on such terms as it maydetermine, or remove, any person to act either as separate or joint securityagent with those rights and obligations vested in the Security Agent by thisAgreement or any Security Document.

 

(b)         TheSecurity Agent will not be:

 

(i)             responsibleto anyone for any misconduct or omission by any agent, person or security agentappointed by it pursuant to paragraph (a) above; or

 

(ii)            boundto supervise the proceedings or acts of any such agent, person or securityagent,

 

provided that it exercises reasonable care inselecting that agent, person or security agent.

 

17.         **Unwinding**

 

Any appropriation or distribution which latertranspires to have been or is agreed by the Security Agent to have been invalidor which has to be refunded shall be refunded and shall be deemed never to havebeen made.

 

18.         **Disapplication**

 

Section 1 of the Trustee Act 2000 shall notapply to the duties and powers of the Security Agent in relation to the trustsconstituted by any Finance Document save to the extent required by law.  Where there are inconsistencies between theTrustee Act 1925 and the Trustee Act 2000 and the express provisions of anysuch Finance Document, the provisions of such Finance Document shall, to theextent allowed by law, prevail and, in the case of any such inconsistency withthe Trustee Act 2000, the provisions of such Finance Document shall constitutea restriction or exclusion for the purposes of that Act.

 

19.         **Lenders**

 

The Security Agent shall be entitled to assumethat each Lender is a Lender unless notified by the Agent to the contrary.

 

142

----

 

20.         **Releaseof Security and guarantees**

 

If, pursuant to or for the purpose of anydisposal permitted under the Finance Documents, the Security Agent requires anyrelease of any guarantee or Security granted by any Obligor, each Party shallpromptly enter into any release and/or other document and take any action whichthe Security Agent may reasonably require.

 

21.         **Authorityof Security Agent**

 

(a)         If,in connection with any disposal permitted under the Finance Documents, anObligor sells or otherwise disposes of (or proposes to sell or otherwisedispose of) any asset, the Security Agent may, and is hereby irrevocablyauthorised on behalf of each Party to:

 

(A)         releasethe Security created pursuant to the Security Documents over the relevantasset;

 

(B)          ifthe relevant asset comprises all of the shares in the capital of an Obligor,release that Obligor and any of its Subsidiaries form all its or their past,present and future liabilities and/or obligations (both actual and contingent)as an Obligor in accordance with Clauses 27.3 (*Assignmentor transfer fee*) and/or 27.5 (*Procedure for transfer*).

 

(b)         EachParty shall promptly enter into any release and/or other document and take anyaction which the Security Agent may reasonably require to give effect toparagraph (a) above.

 

143

----

 

**SCHEDULE 11**

** **

**FORM OF COMPLIANCE CERTIFICATE**

 

To:                          Merchant Banking, Skandinaviska Enskilda Banken AB(publ) as Agent

 

From:                      Deukalion EinhundertvierundzwanzigsteVermögensverwaltungs - GmbH

 

Dated:

 

Dear Sirs

 

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH****- €330,000,000Facility Agreementdated****17 June 2008 (the “Agreement”)**

 

We refer to the Agreement. This is a ComplianceCertificate. Terms defined in the Agreement have the same meaning when used inthis Compliance Certificate unless given a different meaning in this ComplianceCertificate.

 

1.           [Weconfirm that no Default is continuing.]*

 

2.           Weconfirm that:

 

[                   ]

 

3.           Weset out (in reasonable detail) below computations as to the ratios appearing inparagraph 2 above.

 

[                   ]

 
| Signed:                                                                 |   |                                                                    | Signed: |   |
|-------------------------------------------------------------------------|--------|-------------------------------------------------------------------------|---------|--------|
|                                                                    |   |                                                                    |
| Name and title:                                                         |   | Name and title:                                                         |
|                                                                    |   |                                                                    |
| Director of                                                             |   | Director of                                                             |
|                                                                    |   |                                                                    |
| Deukalion Einhundertvierundzwanzigste  Vermögensverwaltungs - GmbH |   | Deukalion Einhundertvierundzwanzigste  Vermögensverwaltungs - GmbH |

 

** insert applicable certificationlanguage*

 

We have reviewed the Facility Agreement andaudited consolidated financial statements of [Sachtleben] for the year ended[                   ].

 

On the basis of that review and audit, nothinghas come to our attention which would require any modification to theconfirmations in paragraph 2 of the above Compliance Certificate [or which weknow to be a continuing Default].

 
|   |   |   |
|--------|--------|--------|

 

for and on behalf of DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH

 

----

*    If this statementcannot be made, the certificate should identify any Default that is continuingand the steps, if any, being taken to remedy it.

 

144

----

 

*name of auditors of**Deukalion EinhundertvierundzwanzigsteVermögensverwaltungs — GmbH*

 

145

----

** **

**SCHEDULE 12********EXISTINGSECURITY**

**PART I********EXISTINGSECURITY**

 
| ** **          | ** ** | ** **                      | ** ** | **Real estate code** | ** ** | ** ** | ** ** | ** **                                                 | ** ** | ** ** | ** ** |
|---------------------|------------|---------------------------------|------------|--------------------------------|------------|------------|------------|------------------------------------------------------------|------------|------------|------------|
| **System nr.** | ** ** | **Real estate**            | ** ** | **From**                       | ** ** | **To**     | ** ** | **Beneficiary**                                            | ** ** | **CCY**    | ** ** | **Amount** | ** ** |
| 400265              |       | Pori, Kaanaankorpi 67  Kr. 1 To |       | 3160                           |       | 3160       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 168  100,00 |   |
| 400285              |       | Pori, Kaanaankorpi 67  Kr. 1 To |       | 3259                           |       | 3273       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 12  613 500,00 |   |
| 400258              |       | Pori, Kaanaankorpi 67  Kr. 1 To |       | 3144                           |       | 3145       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 336  200,00 |   |
| 400256              |       | Pori, Kaanaankorpi 67  Kr. 1 To |       | 3139                           |       | 3140       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 336  200,00 |   |
| 400255              |       | Pori, Kaanaankorpi 67  Kr. 1 To |       | 3129                           |       | 3133       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 840  500,00 |   |
| 400254              |       | Pori, Kaanaankorpi 67  Kr. 1 To |       | 3126                           |       | 3127       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 336  200,00 |   |
| 400251              |       | Pori, Kaanaankorpi 67  Kr. 1 To |       | 3162                           |       | 3162       |       | Kemira Pigments Oy’s  Eläkesäätiö |       | EUR        |       | 33  600,00 |   |
|                |       |                            |       |                           |       |       |       |                                                       |       | EUR        | ** ** | **14 664 300,00** | ** ** |
| ** **          | ** ** | ** **                      | ** ** | ** **                     | ** ** | ** ** | ** ** | ** **                                                 | ** ** | ** ** | ** ** |
| ** **          | ** ** | ** **                      | ** ** | **Real estate code** | ** ** | ** ** | ** ** | ** **                                                 | ** ** | ** ** | ** ** |
| **System nr.** | ** ** | **Real estate**            | ** ** | **From**                       | ** ** | **To**     | ** ** | **Beneficiary**                                            | ** ** | **CCY**    | ** ** | **Amount** | ** ** |
| 400263              |       | Pori,  Kaanaankorpi 67 Kr. 1 To |       | 3203                           |       | 3203       |       | Pori Sicness Fund                                          |       | EUR        |       | 336  300,00 | ** ** |
|                |       |                            |       |                           |       |       |       |                                                       |       | EUR        | ** ** | **336 300,00** | ** ** |
|                |       |                            |       |                           |       |       |       |                                                       |       |       |       |   | ** ** |
| ** **          | ** ** | ** **                      | ** ** | **Real estate code** | ** ** | ** ** | ** ** | ** **                                                 | ** ** | ** ** | ** ** |
| **System nr.** | ** ** | **Real estate**            | ** ** | **From**                       | ** ** | **To**     | ** ** | **Beneficiary**                                            | ** ** | **CCY**    | ** ** | **Amount** | ** ** |
| 400377              |       | Pori, Kaanaankorpi 67  Kr. 1 to |       | 3835                           |       | 3841       |       | Tullihallitus                                              |       | EUR        |       | 117  600,00 |   |
| 400378              |       | Pori, Vuori-Yyteri  R.no1:328 ( |       | 3819                           |       | 3829       |       | Tullihallitus                                              |       | EUR        |       | 184  800,00 |   |
| 400379              |       | Pori, Vuori-Yyteri  R.no1:328 ( |       | 3833                           |       | 3834       |       | Tullihallitus                                              |       | EUR        |       | 33  600,00 |   |
| 400380              |       | Pori, Vuori-Yyteri  R.no1:328 ( |       | 3842                           |       | 3842       |       | Tullihallitus                                              |       | EUR        |       | 16  800,00 |   |
| 400381              |       | Pori, Vuori-Yyteri  R.no1:328 ( |       | 3843                           |       | 3855       |       | Tullihallitus                                              |       | EUR        |       | 218  400,00 |   |
| 400382              |       | Pori, Vuori-Yyteri  R.no1:328 ( |       | 3858                           |       | 3862       |       | Tullihallitus                                              |       | EUR        |       | 84  000,00 |   |
| 400384              |       | Pori, Vuori-Yyteri  R.no1:328 ( |       | 3864                           |       | 3878       |       | Tullihallitus                                              |       | EUR        |       | 252  000,00 |   |
|                |       |                            |       |                           |       |       |       |                                                       |       | EUR        | ** ** | **907 200,00** | ** ** |

 

146

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**PART II****KEMIRA PLEDGE**

 
| ** **          | ** ** | ** **                     | ** ** | **Real estate code** | ** ** | ** ** | ** ** | ** **             | ** ** | ** ** | ** ** |
|---------------------|------------|--------------------------------|------------|--------------------------------|------------|------------|------------|------------------------|------------|------------|------------|
| **System nr.** | ** ** | **Real estate**           | ** ** | **From**                       | ** ** | **To**     | ** ** | **Beneficiary**        | ** ** | **CCY**    | ** ** | **Amount** | ** ** |
| 400234              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3153                           |       | 3153       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400239              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3189                           |       | 3189       |       | Neliapila Pension Fund |       | EUR        |       | 185.500,00 |   |
| 400238              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3185                           |       | 3185       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400237              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3181                           |       | 3181       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400235              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3154                           |       | 3154       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400245              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3149                           |       | 3149       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400246              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3150                           |       | 3150       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400247              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3155                           |       | 3155       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400248              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3156                           |       | 3156       |       | Neliapila Pension Fund |       | EUR        |       | 16.800,00 |   |
| 400268              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3168                           |       | 3169       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400267              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3163                           |       | 3166       |       | Neliapila Pension Fund |       | EUR        |       | 672.400,00 |   |
| 400266              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3161                           |       | 3161       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400264              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3204                           |       | 3207       |       | Neliapila Pension Fund |       | EUR        |       | 1.345.200,00 |   |
| 400244              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3143                           |       | 3143       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400243              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3138                           |       | 3138       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400242              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3128                           |       | 3128       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400241              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3193                           |       | 3193       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400240              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3190                           |       | 3190       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400228              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3148                           |       | 3148       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400229              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3151                           |       | 3151       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400230              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3159                           |       | 3159       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400231              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3167                           |       | 3167       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400232              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3179                           |       | 3179       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400233              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3152                           |       | 3152       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400250              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3158                           |       | 3158       |       | Neliapila Pension Fund |       | EUR        |       | 16.800,00 |   |
| 400252              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3209                           |       | 3209       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400253              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3124                           |       | 3125       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400281              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3212                           |       | 3214       |       | Neliapila Pension Fund |       | EUR        |       | 2.522.700,00 |   |
| 400282              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3217                           |       | 3218       |       | Neliapila Pension Fund |       | EUR        |       | 1.681.800,00 |   |
| 400283              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3221                           |       | 3223       |       | Neliapila Pension Fund |       | EUR        |       | 2.522.700,00 |   |
| 400284              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3225                           |       | 3229       |       | Neliapila Pension Fund |       | EUR        |       | 4.204.500,00 |   |
| 400257              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3135                           |       | 3136       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400236              |       | Pori, Kaanaankorpi 67 Kr. 1 to |       | 3174                           |       | 3174       |       | Neliapila Pension Fund |       | EUR        |       | 185.000,00 |   |
| 400259              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3137                           |       | 3137       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400260              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3141                           |       | 3142       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400261              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3146                           |       | 3147       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400262              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3197                           |       | 3202       |       | Neliapila Pension Fund |       | EUR        |       | 5.045.400,00 |   |
| 400276              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3191                           |       | 3191       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400275              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3188                           |       | 3188       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400274              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3187                           |       | 3187       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400273              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3184                           |       | 3184       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400272              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3178                           |       | 3178       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400271              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3175                           |       | 3176       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400269              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3170                           |       | 3171       |       | Neliapila Pension Fund |       | EUR        |       | 336.200,00 |   |
| 400270              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3173                           |       | 3173       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400280              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3210                           |       | 3210       |       | Neliapila Pension Fund |       | EUR        |       | 840.900,00 |   |
| 400277              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3194                           |       | 3194       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400278              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3208                           |       | 3208       |       | Neliapila Pension Fund |       | EUR        |       | 168.100,00 |   |
| 400279              |       | Pori, Kaanaankorpi 67 Kr. 1 To |       | 3195                           |       | 3195       |       | Neliapila Pension Fund |       | EUR        |       | 840.900,00 |   |
|                |       |                           |       |                           |       |       |       |                   |       | EUR        | ** ** | **27.630.000,00** | ** ** |

 

147

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**SCHEDULE 13**

**TIMETABLES**

**PART I********LOANS**

 

“D -   ”refers to the number of Business Days before the relevant Utilisation Date/thefirst day of the relevant Interest Period.

 
| ** **                                                                                                                                                                                                                                                  | ** ** | **Loans in euro**                          | ** ** | **Loans in sterling**             | ** ** | **Loans in other  currencies** | ** ** |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------------------------------------------------|------------|---------------------------------------------|------------|------------------------------------------|------------|
| ** **                                                                                                                                                                                                                                                  | ** ** | ** **                                           | ** ** | ** **                                  | ** ** | ** **                               | ** ** |
| Request for approval as an Optional Currency,  if required (Clause 11.3 (*Conditions  relating to Optional Currencies*))                                                                                                                                    |       |                                                 |       | D - 3  10:00 a.m.                      |       | D - 5  10:00 a.m.                   |       |
|                                                                                                                                                                                                                                                        |       |                                                 |       |                                        |       |                                     |       |
| Agent notifies the Lenders of the request  (Clause 11.3 (*Conditions relating to  Optional Currencies*))                                                                                                                                                    |       |                                                 |       | D - 3

3:00 p.m.                       |       | D - 5

3:00 p.m.                    |       |
|                                                                                                                                                                                                                                                        |       |                                                 |       |                                        |       |                                     |       |
| Responses by Lenders to the request (Clause 11.3  (*Conditions relating to Optional  Currencies*))                                                                                                                                                          |       |                                                 |       | D - 2

1:00 p.m.                       |       | D - 4

1:00 p.m.                    |       |
|                                                                                                                                                                                                                                                        |       |                                                 |       |                                        |       |                                     |       |
| Agent notifies the Company if a currency is  approved as an Optional Currency in accordance with Clause 11.3 (*Conditions relating to Optional Currencies*)                                                                                                 |       |                                                 |       | D - 2

5:00 p.m.                       |       | D - 4

5:00 p.m.                    |       |
|                                                                                                                                                                                                                                                        |       |                                                 |       |                                        |       |                                     |       |
| Delivery of a duly completed Utilisation  Request (Clause 12.1 (*Delivery of a  Utilisation Request*)) or a Selection Notice (Clause 20.1 (*Selection of Interest Periods*))                                                                                |       | D - 3  10:00 a.m.                               |       | D - 1  10:00 a.m.                      |       | D - 3  10:00 a.m.                   |       |
|                                                                                                                                                                                                                                                        |       |                                                 |       |                                        |       |                                     |       |
| Agent determines (in relation to a  Utilisation) the Base Currency Amount of the Loan, if required under Clause 12.4 (*Lenders’  participation*) and notifies the Lenders of the Loan in accordance  with Clause 12.4 (*Lenders’**participation*) |       | D - 3  11:00 a.m.                               |       | D - 1  11:00 a.m.                      |       | D - 3  11:00 a.m.                   |       |
|                                                                                                                                                                                                                                                        |       |                                                 |       |                                        |       |                                     |       |
| LIBOR or EURIBOR is fixed                                                                                                                                                                                                                                   |       | Quotation Day as of 11:00 a.m.

(Brussels time) |       | Quotation Day as of 11:00 a.m.

  |       | Quotation Day as of 11:00 a.m.      |       |
|                                                                                                                                                                                                                                                        |       |                                                 |       |                                        |       |                                     |       |
| Agent receives a notification from a                                                                                                                                                                                                                        |       | Quotation Day                                        |       | Quotation Day                               |       | Quotation Day                            |       |

 

148

----

 
| Lender under Clause 15.2 (*Unavailability of a currency*)                           |   | 3:00 p.m.               |   | 3:00 p.m.               |   | 3:00 p.m.               |   |
|-------------------------------------------------------------------------------------|--------|------------------------------|--------|------------------------------|--------|------------------------------|--------|
|                                                                                |   |                         |   |                         |   |                         |   |
| Agent gives notice in accordance with Clause 15.2  (*Unavailability of a currency*) |   | Quotation Day 5:00 p.m. |   | Quotation Day 5:00 p.m. |   | Quotation Day 5:00 p.m. |   |

 

149

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**PART II****LETTERS OF CREDIT OR BANK GUARANTEES**

 
| ** **                                                                                                                                                                                                                                                                                                                                                                           | ** ** | **Euro**               | ** ** | **Sterling**           | ** ** | **Other Currencies**   | ** ** |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|------------------------|------------|------------------------|------------|------------------------|------------|
| ** **                                                                                                                                                                                                                                                                                                                                                                           | ** ** | ** **             | ** ** | ** **             | ** ** | ** **             | ** ** |
| Request for approval as an Optional Currency,  if required (Clause 11.3 (*Conditions  relating to Optional Currencies*))                                                                                                                                                                                                                                                             |       |                   |       | D - 3

10:00 a.m. |       | D - 5

10:00 a.m. |       |
|                                                                                                                                                                                                                                                                                                                                                                                 |       |                   |       |                   |       |                   |       |
| Agent notifies the Lenders of the request  (Clause 11.3 (*Conditions relating to  Optional Currencies*))                                                                                                                                                                                                                                                                             |       |                   |       | D - 3

3:00 p.m.  |       | D - 5

3:00 p.m.  |       |
|                                                                                                                                                                                                                                                                                                                                                                                 |       |                   |       |                   |       |                   |       |
| Responses by Lenders to the request (Clause 11.3  (*Conditions relating to Optional  Currencies*))                                                                                                                                                                                                                                                                                   |       |                   |       | D - 2

1:00 p.m.  |       | D - 4

1:00 p.m.  |       |
|                                                                                                                                                                                                                                                                                                                                                                                 |       |                   |       |                   |       |                   |       |
| Agent notifies the Company if a currency is  approved as an Optional Currency in accordance with Clause 11.3 (*Conditions relating to Optional Currencies*)                                                                                                                                                                                                                          |       |                   |       | D - 2

5:00 p.m.  |       | D - 4

5:00 p.m.  |       |
|                                                                                                                                                                                                                                                                                                                                                                                 |       |                   |       |                   |       |                   |       |
| Delivery of a duly completed Utilisation  Request (Clause 13.3 (*Delivery of a  Utilisation Request for Letters of Credit or Bank Guarantees*)                                                                                                                                                                                                                                       |       | D - 3

10:00 a.m. |       | D - 1

10:00 a.m. |       | D - 3

10:00 a.m. |       |
|                                                                                                                                                                                                                                                                                                                                                                                 |       |                   |       |                   |       |                   |       |
| Agent determines (in relation to a  Utilisation) the Base Currency Amount of the Letter of Credit or Bank  Guarantees, if required under Clause 13.6 (*Issue of  Letters of Credit or Bank Guarantees*) and notifies the Issuing  Bank and the Lenders of the Letter of Credit or Bank Guarantee in accordance  with Clause 13.6 (*Issue of Letters of  Credit**or Bank Guarantees*) |       | D - 3

11:00 a.m. |       | D - 1

11:00 a.m. |       | D - 3

11:00 a.m. |       |
|                                                                                                                                                                                                                                                                                                                                                                                 |       |                   |       |                   |       |                   |       |
| Delivery of a duly completed Renewal Request  (Clause 13.7 (*Renewal of a Letter of  Credit**or Bank Guarantee*).                                                                                                                                                                                                                                                                    |       | D - 3

10:00 a.m. |       | D - 1

10:00 a.m. |       | D - 3

10:00 a.m. |       |

 

150

----

 

 

**SCHEDULE 14**

**FORM OF LETTER OF CREDIT**

 

To:                   [Beneficiary]

 

(the “**Beneficiary**”)

 

[Date]

 

 

**IrrevocableStandby Letter of Credit no.**

 

At the request of [                   ]Merchant Banking, Skandinaviska Enskilda Banken AB (publ), (the “**Issuing Bank**”) issues this irrevocablestandby letter of credit (“**Letter of Credit**”)in your favour on the following terms and conditions:

 

1.                            **Definitions**

 

In this Letter of Credit:

 

“**Business Day**” means a day (other than a Saturday or a Sunday)on which banks are open for general business in Frankfurt, Helsinki, London andStockholm(1).

 

“**Demand**” means a demand for a payment under this Letter ofCredit in the form of the schedule to this Letter of Credit.

 

“**Expiry Date**” means [                   ].

 

“**Total L/C Amount**” means [                   ].

 

2.                            **Issuing Bank’s agreement**

 

(a)                       The Beneficiary may request a drawing or drawingsunder this Letter of Credit by giving to the Issuing Bank a duly completedDemand.  A Demand must be received by theIssuing Bank by [                   ]p.m. ([London] time) on the Expiry Date.

 

(b)                       Subject to the terms of this Letter of Credit, theIssuing Bank unconditionally and irrevocably undertakes to the Beneficiarythat, within [ten] Business Days of receipt by it of a Demand, it must pay tothe Beneficiary the amount demanded in that Demand.

 

(c)                        The Issuing Bank will not be obliged to make a paymentunder this Letter of Credit if as a result the aggregate of all payments madeby it under this Letter of Credit would exceed the Total L/C Amount.

 

----

(1)                       Thismay need to be amended depending on the currency of payment under the Letter ofCredit.

 

151

----

 

3.                            **Expiry**

 

(a)                       The Issuing Bank will be released from its obligationsunder this Letter of Credit on the date (if any) notified by the Beneficiary tothe Issuing Bank as the date upon which the obligations of the Issuing Bankunder this Letter of Credit are released.

 

(b)                       Unless previously released under paragraph (a) above,on [                   ]p.m. ([London] time) on the Expiry Date the obligations of the Issuing Bankunder this Letter of Credit will cease with no further liability on the part ofthe Issuing Bank except for any Demand validly presented under the Letter ofCredit that remains unpaid.

 

(c)                        When the Issuing Bank is no longer under any furtherobligations under this Letter of Credit, the Beneficiary must return theoriginal of this Letter of Credit to the Issuing Bank.

 

4.                            **Payments**

 

All payments under this Letter of Credit shallbe made in the Base Currency or an Optional Currency and for value on the duedate to the account of the Beneficiary specified in the Demand.

 

5.                            **Delivery of Demand**

 

Each Demand shall be in writing, and, unlessotherwise stated, may be made by letter or fax and must be received in legibleform by the Issuing Bank at its address and by the particular department orofficer (if any) as follows:

 

[Address of Issuing Bank]

 

Attention: [                   ]

 

6.                            **Assignment**

 

The Beneficiary’s rights under this Letter ofCredit may not be assigned or transferred.

 

7.                            **ISP 98**

 

Except to the extent it is inconsistent withthe express terms of this Letter of Credit, this Letter of Credit is subject tothe International Standby Practices (ISP 98), International Chamber of CommercePublication No. 590.

 

8.                            **Governing Law**

 

This Letter of Credit is governed by Englishlaw.

 

9.                            **Jurisdiction**

 

The courts of England have exclusivejurisdiction to settle any dispute arising out of or in connection with thisLetter of Credit.

 

Yours faithfully,

 

 

152

----

 

Merchant Banking, Skandinaviska Enskilda BankenAB (publ)

 

 

By:

 

153

----

 

**SCHEDULEFORM OF DEMAND**

 

To:                   Merchant Banking, Skandinaviska Enskilda Banken AB(publ)

 

[Date]

 

 

Dear Sirs

**StandbyLetter of Credit no.**[                   ]**issued in favour of**[**BENEFICIARY**]**(the “Letter of Credit”)**

 

We refer to the Letter of Credit.  Terms defined in the Letter of Credit havethe same meaning when used in this Demand.

 

1.                            We certify that the sum of [                   ]is due [and has remained unpaid for at least [                   ]Business Days] [under [set out underlying contract or agreement]].  We therefore demand payment of the sum of [                   ].

 

2.                            Payment should be made to the following account:

 

Name:

 

AccountNumber:

 

Bank:

 

3.                            The date of this Demand is not later than the ExpiryDate.

 

Yours faithfully

 

 
| (Authorised  Signatory) | (Authorised Signatory) |
|-------------------------|------------------------|
|                    |                   |
|                    |                   |
|                    | For                    |
|                    |                   |
|                    | [BENEFICIARY]          |

 

154

----

 

**SCHEDULE 15****FORM OF BANK GUARANTEE**

 

To:                   [Beneficiary]

 

(the “**Beneficiary**”)

 

[Date]

 

**Irrevocable Bank GuaranteeNo. [                   ]**

 

At the request of [                   ],Merchant Banking, Skandinaviska Enskilda Banken AB (publ) (the “**Issuing Bank**”) issues this irrevocable bank guarantee (“**Bank Guarantee**”) in your favour on the following terms andconditions:

 

1.                            **Definitions**

 

In this Bank Guarantee:

 

“**Business Day**” means a day (not being aSaturday or Sunday) on which banks are open for general business in Frankfurt,Helsinki, London and Stockholm.

 

“**Demand**” means a demand for a paymentunder this Bank Guarantee in the form of the schedule to this Bank Guarantee.

 

“**Expiry Date**” means [                   ].

 

“**Total Bank Guarantee Account**” means [                   ].

 

2.                            **Issuing Bank’s agreement**

 

(a)                       The Beneficiary may make a demand under this Bank Guarantee by giving tothe Issuing Bank a duly completed Demand. A Demand must be received by theIssuing Bank by [                   ]p.m. ([London] time) on the Expiry Date.

 

(b)                       Subject to the terms of this Bank Guarantee, the Issuing Bankunconditionally and irrevocably undertakes to the Beneficiary that, within[ten] Business Days of receipt by it of a Demand, it must pay to theBeneficiary the amount demanded in that Demand.

 

(c)                        The Issuing Bank will not be obliged to make a payment under this BankGuarantee if as a result the aggregate of all payments made by it under thisBank Guarantee would exceed the Total Bank Guarantee Amount.

 

3.                            **Expiry**

 

(a)                       The Issuing Bank will be released from its obligations under this BankGuarantee on the date (if any) notified by the Beneficiary to the Issuing Bankas the date upon which the obligations of the Issuing Bank under this BankGuarantee are released.

 

(b)                       Unless previously released under paragraph (a) above, on [                   ]p.m. ([London] time) on the Expiry Date the obligations of the Issuing Bankunder this Bank Guarantee will cease with no

 

155

----

 

further liability on the part of the IssuingBank except for any Demand validly presented under the Bank Guarantee thatremains unpaid.

 

(c)                        When the Issuing Bank is no longer under any further obligations underthis Bank Guarantee, the Beneficiary must return the original of this BankGuarantee to the Issuing Bank.

 

4.                            **Payments**

 

All payments under this Bank Guarantee shallbe made in the Base Currency or an Optional Currency and for value on the duedate to the account of the Beneficiary specified in the Demand.

 

5.                            **Delivery of Demand**

 

Each Demand shall be in writing, and, unlessotherwise stated, may be made by letter or fax and must be received in legibleform by the Issuing Bank at its address and by the particular department orofficer (if any) as follows:

 

[Address of Issuing Bank]

 

Attention:                           [                   ]

 

6.                            **Assignment**

 

The Beneficiary’s rights under this BankGuarantee may not be assigned or transferred.

 

7.                            **ISP 98**

 

Except to the extent it is inconsistent withthe express terms of this Bank Guarantee, this Bank Guarantee is subject to theInternational Standby Practices (ISP 98), International Chamber of CommercePublication No. 590.

 

8.                            **Governing Law**

 

This Bank Guarantee is governed by Englishlaw.

 

9.                            **Jurisdiction**

 

The courts of England have exclusivejurisdiction to settle any dispute arising out of or in connection with thisBank Guarantee.

 

Yours faithfully

 

Merchant Banking, Skandinaviska Enskilda Banken AB (publ)

 

 

By:

 

156

----

** **

**Schedule to Bank GuaranteeForm of Demand**

 

To:                   Merchant Banking, Skandinaviska Enskilda Banken AB (publ)

[Date]

 

Dear Sirs

 

**Bank Guarantee. No. [                   ]issued in favour of [BENEFICIARY] (the “Bank Guarantee”)**

 

We refer to the Bank Guarantee. Terms defined in the Bank Guarantee havethe same meaning when used in this Demand.

 

1.                            We certify that the sum of [                   ]is due [and has remained unpaid for at least [                   ]Business Days] [under [set out underlying contract or agreement]]. We thereforedemand payment of the sum of [                   ].

 

2.                            Payment should be made to the following account:

 

Name:

Account Number:

Bank:

 

3.                            The date of this Demand is not later than the Expiry Date.

 

Yours faithfully

 

 
| (Authorised  Signatory) | (Authorised Signatory) |
|-------------------------|------------------------|
|                    |                   |
|                    |                   |
|                    | For                    |
|                    |                   |
|                    | [BENEFICIARY]          |

 

157

----

 

**SCHEDULE16****F****ORM OF RESIGNATION LETTER**

 

To:                   [                   ]as Agent

 

From:     [*resigningObligor*] and DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH

 

Dated:

 

Dear Sirs

**DeukalionEinhundertvierundzwanzigste Vermögensverwaltungs - GmbH****- €330,000,000 Facility Agreementdated****17 June 2008****(the “Agreement”)**

 

1.                            We refer to the Agreement. This is a ResignationLetter. Terms defined in the Agreement have the same meaning in thisResignation Letter unless given a different meaning in this Resignation Letter.

 

2.                            Pursuant to [Clause 35.3 (*Resignationof a Borrower*)]/[Clause 35.5 (*Resignation of a Guarantor*)],we request that [*resigning Obligor*] be releasedfrom its obligations as a [Borrower]/[Guarantor] under the Agreement and theFinance Documents.

 

3.                            We confirm that:

 

(a)                        noDefault is continuing or would result form the acceptance of this request; and

 

(b)                        thisrequest is given in relation to a Third Party Disposal of [*resigningObligor*];

 

(c)                         theNet Sale Proceeds have been or will be applied in accordance with Clause 18.5 (*Mandatory prepayment- Net Sale Proceeds*).

 

4.                            This letter is governed by English law.

 

 
|                                  |   |                  |
|---------------------------------------|--------|-----------------------|
|                                  |   |                  |
| Deukalion Einhundertvierundzwanzigste |   |                  |
| Vermögensverwaltungs - GmbH      |   | [*resigning Obligor*] |
|                                  |   |                  |
| By:                                   |   | By:                   |

 

158

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** **

**SIGNATURE PAGES**

 

**The****Company**

 

Deukalion EinhundertvierundzwanzigsteVermögensverwaltungs - GmbH

 

Address:           Dr. — Rudolf — Sachtleben — Str. 4

47198, Duisburg

Germany

 

Fax: +49 (2066) 22-3201

 

Email: w.d.griebler@sachtleben.de

 

Attention: Wolf-Dieter Griebler

 

By: DR MARCUS BRUNE

 

 

**The****Original Borrowers**

 

Deukalion EinhundertvierundzwanzigsteVermögensverwaltungs - GmbH

 
| By: | DR MARCUS BRUNE |   |
|-----|-----------------|--------|

 

 

Sachtleben Chemie GmbH

 
| By: | DR MARTIN BURGHOLTE | PROF WOLF-DIETER GRIEBLER |
|-----|---------------------|---------------------------|

 

 

White Pigments Holding Oy

 
| By: | UDO PINGER |   |
|-----|------------|--------|

 

 

Kemira Pigments Oy

 
| By: | HANNU VIROLAINEN |   |
|-----|------------------|--------|

 

 

**The****Original Guarantors**

 

Deukalion EinhundertvierundzwanzigsteVermögensverwaltungs - GmbH

 
| By: | DR MARCUS BRUNE |   |
|-----|-----------------|--------|

 

----

 

Sachtleben Chemie GmbH

 
| By: | DR MARTIN BURGHOLTE | PROF WOLF-DIETER GRIEBLER |
|-----|---------------------|---------------------------|

 

 

White Pigments Holding Oy

 
| By: | UDO PINGER |   |
|-----|------------|--------|

 

 

Kemira Pigments Oy

 
| By: | HANNU VIROLAINEN |   |
|-----|------------------|--------|

 

 

**The Arranger**

 

Merchant Banking, Skandinaviska Enskilda BankenAB (publ)

 
| By: | MALCOLM CROW | ÅSA SAMUELSSON |
|-----|--------------|---------------------|

 

 

Nordea Bank Finland plc

 
| By: | ESA RAITANEN | JUHA-MATTI PELTOMAA |
|-----|--------------|---------------------|

 

 

**The Original Lenders**

 

Skandinaviska Enskilda Banken AB (publ)

 
| By: | MALCOLM CROW | ÅSA SAMUELSSON |
|-----|--------------|---------------------|

 

 

Nordea Bank Finland Plc

 
| By: | ESA RAITANEN | JUHA-MATTI PELTOMAA |
|-----|--------------|---------------------|

 

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** **

**The Agent**

 
| Merchant Banking,  Skandinaviska Enskilda Banken AB (publ) |
|------------------------------------------------------------|
|                                                       |
| Address:                                                   | Skandinaviska Enskilda Banken AB (publ) |
|                                                       | Rissneleden 110 |
|                                                       | SE-106 40 Stockholm |
|                                                       |   |
| Attention:                                                 | SCO |
|                                                       |   |
| E-mail:                                                    | sco@seb.se |
|                                                       |   |
| Fax number:                                                | + 46 8 611 03 84 |
|                                                       |   |
| With a copy to:                                            |   |
|                                                       |   |
| Address:                                                   | Loan Agency |
|                                                       | Capital Markets, SEB |
|                                                       | Scandinavian House |
|                                                       | 2 Cannon Street |
|                                                       | London EC4M 6XX |
|                                                       |   |
| E-mail:                                                    | agency@seb.co.uk |
|                                                       |   |
| Fax number:                                                | + 44 207 329 2304 |
|                                                       |   |
|                                                       |   |   |
| By:                                                        | MALCOLM CROW | ÅSA SAMUELSSON |
|                                                       |
|                                                       |
| **The****Security Agent**                                  |
|                                                       |
| Merchant Banking,  Skandinaviska Enskilda Banken AB (publ) |
|                                                       |
| Address:                                                   | Loan Agency |
|                                                       | Capital Markets, SEB |
|                                                       | Scandinavian House |
|                                                       | 2 Cannon Street |
|                                                       | London EC4M 6XX |
|                                                       |   |
| E-mail:                                                    | agency@seb.co.uk |
|                                                       |   |
| Fax number:                                                | + 44 207 329 2304 |
|                                                       |   |
| Attention:                                                 | Loan Agency |
|                                                       |   |
| By:                                                        | MALCOLM CROW | ÅSA SAMUELSSON |
|                                                       |
|                                                       |
| **The****Issuing Bank**                                    |
| ** **                                                 |
| Merchant Banking,  Skandinaviska Enskilda Banken AB (publ) |
|                                                       |
| By:                                                        | MALCOLM CROW | ÅSA SAMUELSSON |
|                                                            |  |  |  |

 

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