**Exhibit 10.64**

 

EXECUTION VERSION

 

AMENDMENT AND RESTATEMENT AGREEMENT

 

dated29 August 2008

 

for

 

*DEUKALIONEINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS -*

*GMBH*

* *

arrangedby

*MERCHANT BANKING, SKANDINAVISKAENSKILDA BANKEN AB (PUBL) AND*

*NORDEA BANK FINLAND PLC*

* *

with

 

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

actingas Agent

 

RELATING TO A FACILITY AGREEMENT DATED

 

17 June 2008

 

 

Ref: NHAX/GEM

 

Linklaters LLP

 

----

 

**CONTENTS**

 
| **CLAUSE** | ** **                     | **PAGE** |
|------------|--------------------------------|----------|
| ** ** | ** **                     |
| 1.         | Definitions and interpretation | i        |
| 2.         | Conditions precedent           | ii       |
| 3.         | Representations                | ii       |
| 4.         | Amendment                      | ii       |
| 5.         | Transaction expenses           | ii       |
| 6.         | Miscellaneous                  | ii       |
| 7.         | Governing law                  | iii      |
|            |                                |          |  |

 

**THE SCHEDULES**

 
| **SCHEDULE**                              | ** ** | **PAGE** |
|-------------------------------------------|------------|----------|
| ** **                                | ** ** |
| SCHEDULE 1 The Original Obligors          | iv         |
| SCHEDULE 2 Conditions precedent           | v          |
| SCHEDULE 3 Form of Amended Agreement | vii        |

 

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THIS AGREEMENT is dated 29 August 2008and made between:

 

(1)                          DEUKALION EINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS- GMBH, a limited 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 asoriginal borrowers (together with the Company, the “**Original Borrowers**”);

 

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

 

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

 

IT IS AGREED as follows:

 

**1.**                               DEFINITIONS AND INTERPRETATION

** **

**1.1**                         Definitions

** **

In this Agreement:

 

“**AmendedAgreement**” means the Original Facility Agreement, as amended andrestated in the form set out in Schedule 3 (*Form ofAmended Agreement*).

 

“**EffectiveDate**” means the date of this Agreement.

 

“**OriginalFacility Agreement**” means the €330,000,000 facility agreement dated17 June 2008 between the Company, certain Subsidiaries of the Company asborrowers and guarantors, the Agent, the Arranger named in it and the Lendersnamed in it.

 

“**Party**” means aparty to this Agreement.

 

**1.2**                         Incorporation of defined terms

** **

(a)                            Unless a contrary indication appears, terms defined in theOriginal 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 a Party has no rightunder the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoythe benefit of any term of this Agreement.

 

**1.4**                         Designation

** **

In accordance with the Original FacilityAgreement, each of the Company and the Agent designate this Agreement as aFinance Document.

 

i

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**2.**                               CONDITIONS SUBSEQUENT

** **

The Company shall deliver to the Agentall the documents and other evidence listed in Schedule 2 (*Conditions subsequent*) in form andsubstance satisfactory to the Agent by no later than the initial UtilisationDate. Any failure by the Company to fulfil these conditions shall be a breachof the Amended Agreement.

 

**3.**                               REPRESENTATIONS

** **

Each Obligor makes the RepeatingRepresentations, and the representations and warranties in Clause 22.5 (*Validity and admissibility in evidence*),22.7 (*Deduction of Tax*) and 22.8(*No filing or stamp taxes*) of 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 references in Clause 22 (*Representations*) of the Original FacilityAgreement to “the Finance Documents” include this Agreement and, on theEffective Date, the Amended Agreement.

 

**4.**                               AMENDMENT

** **

**4.1**                         Amendment

** **

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

 

**4.2**                         Continuing obligations

** **

The provisions of the Original FacilityAgreement and the other Finance Documents (including the guarantee andindemnity of each Guarantor) shall, save as amended by this Agreement, continuein full force and effect.

 

**5.**                               TRANSACTION EXPENSES

** **

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

 

**6.**                               MISCELLANEOUS

** **

**6.1**                         Incorporation of terms

** **

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

 

**6.2**                         Counterparts

** **

This Agreement 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 this Agreement.

 

ii

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**7.**                               GOVERNING LAW

** **

This Agreement is governed by Englishlaw.

 

**This Agreement has been entered into on the datestated at the beginning of this Agreement.**

 

iii

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**SCHEDULE 1**

** **

**THE ORIGINAL OBLIGORS**

 

**Name of Original Borrower**

** **

SACHTLEBENCHEMIE GMBH

 

FINNISHHOLDCO

 

KEMIRAPIGMENTS OY

 

**Name of Original Guarantor**

** **

SACHTLEBENCHEMIE GMBH

 

FINNISHHOLDCO

 

KEMIRAPIGMENTS OY

 

iv

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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 of eachObligor 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 Original Facility Agreement.

 

(c)                          Acertified(*beglaubigt*) excerpt from the commercialregister (*Handelsregister*) of each Obligor incorporated inGermany of recent date not dated earlier than 14 days prior to the Original Facility Agreement.

 

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

 

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

 

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

 

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

 

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

 

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

 

(f)                            A copy of a resolution signed by all the holders of theissued 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 authorised bythe resolutions referred to in paragraphs (d) and (e) above.

 

(h)                         A certificate of an authorised signatory of the relevantObligor certifying that each copy document relating to it specified in thisSchedule 2 is correct, complete and in full force and effect as at a date noearlier than the initial Utilisation Date.

 

2.                               **Legal opinions**

 

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

 

(b)                         A legal opinion of Clifford Chance LLP, legal advisers tothe 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 Law Ltd,legal advisers to the Arranger and the Agent in Finland, substantially in theform distributed to the Lenders prior to signing this Agreement.

 

v

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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.

 

vi

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**SCHEDULE 3**

** **

**FORM OF AMENDED AGREEMENT**

** **

*€330,000,000*

* *

FACILITY AGREEMENT

 

Dated17 June 2008

asamended and restated on                August 2008

 

for

 

*DEUKALIONEINHUNDERTVIERUNDZWANZIGSTE*

*VERMÖGENSVERWALTUNGS- GMBH*

* *

arranged by

 

*MERCHANTBANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) AND*

*NORDEABANK FINLAND PLC*

* *

with

 

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

actingas Agent

 

and

 

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

actingas Security Agent

 

and

 

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

actingas Issuing Bank

 

 

Ref: NHAX/GEM

 

Linklaters LLP

 

vii

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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 |
|                                                         |                                                     |  |  |

 

viii

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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 |

 

**THESCHEDULES**

 
| **SCHEDULE**                                       |       | **PAGE** |
|----------------------------------------------------|------------|----------|
| ** **                                         | ** ** |
| **SCHEDULE 1** The Original Parties                | 122        |
| **SCHEDULE 2** Conditions precedent                |       |
| **SCHEDULE 3** Requests                            |       |
| **SCHEDULE 4** Mandatory Cost formulae             |       |
| **SCHEDULE 5** Form of Transfer Certificate   |       |
| **SCHEDULE 6** Form of Accession Letter       |       |
| **SCHEDULE 7** Security Agency Provisions          |       |
| **SCHEDULE 8** Form of Compliance Certificate |       |
| **SCHEDULE 9** Existing Security                   |       |
| **SCHEDULE 10** Timetables                         |       |
| **SCHEDULE 11** Form of Letter of Credit      |       |
| **SCHEDULE 12**Form of Bank Guarantee         |       |
| **SCHEDULE 13**Form of Resignation Letter     |       |

 

ix

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

 

(5)                          DEUKALION EINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS- GMBH, a limited liability company incorporated under the laws of Germany (*Gesellschaft mit beschränkter Haftung*) and registered 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 ofSchedule 4 as original borrowers (together with the Company, the “**Original Borrowers**”);

 

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

 

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

 

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

 

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

 

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

 

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

 

IT IS AGREED as follows:

 

**SECTION 1**

** **

**INTERPRETATION**

** **

**8.**                               DEFINITIONS AND INTERPRETATION

** **

**8.1**                         Definitions

** **

In this Agreement:

 

“**AccelerationDate**” means the date (if any) on which the Agent gives a noticeunder Clause 26.16 (*Acceleration*).

 

“**AccessionLetter**” means a document substantially in the form set out inSchedule 6 (*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 4 (*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’sSpot Rate of Exchange**” means the Agent’s spot rate of exchange forthe purchase of the relevant currency with the Base Currency in the Londonforeign exchange market at or about 11:00 a.m. on a particular day.

 

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

 

“**AncillaryFacility**” means an ancillary facility made available by an AncillaryLender in accordance with Clause 9 (*AncillaryFacilities*).

 

“**AncillaryFacility Document**” means a document setting out the terms of anAncillary Facility.

 

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

 

“**Ancillary Lender**”means a Lender which agrees to make available an Ancillary Facility inaccordance with Clause 16 (*AncillaryFacilities*).

 

“**AncillaryOutstandings**” means, at any time and in relation to an AncillaryFacility, the aggregate (calculated in the Base Currency) of the followingamounts outstanding at that time under that Ancillary Facility:

 

(a)                                   themaximum potential liability under all guarantees, bonds and letters of creditissued under that Ancillary Facility; and

 

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

 

in each case determined by the relevant AncillaryLender in accordance with its usual practice at that time for calculating itsexposure under similar facilities or transactions (acting reasonably and afterconsultation with the Agent).

 

For the purposes of this definition:

 

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

 

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

 

2

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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.

 

“**AvailabilityPeriod**” means:

 

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

 

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

 

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

 

“**AvailableCommitment**” means, in relation to a Facility, a Lender’s Commitmentunder that Facility minus:

 

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

 

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

 

(c)                                   in the case of Facility B only, the Base Currency Amountof its Ancillary Commitment in relation to any Ancillary Facility that is dueto be made 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.

 

3

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“**BaseCurrency Amount**” means:

 

(a)                                   in relation to a Utilisation, the amount specified in theUtilisation Request delivered by a Borrower for that Utilisation (or, if theamount requested is not denominated in the Base Currency, that amount convertedinto the Base Currency at the Agent’s Spot Rate of Exchange on the date whichis three Business Days before the Utilisation Date or, if later, on the datethe Agent receives the Utilisation Request and, in the case of a Letter ofCredit or Bank Guarantee, as adjusted under Clause 6.8 (*Revaluation of Letters of Credit and Bank Guarantees*));

 

(b)                                  inrelation to an Ancillary Commitment, the amount specified in the noticedelivered to the Agent by the Company pursuant to paragraph (a) of Clause9.3 (*Request for Ancillary Facilities*),

 

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

 

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

 

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

 

(a)                                   the interest (excluding Mandatory Costs and the Margin)which a Lender should have received for the period from the date of receipt ofall or any part of its participation in a Loan or Unpaid Sum to the last day ofthe current Interest Period in respect of that Loan or Unpaid Sum, had theprincipal amount or Unpaid Sum received been paid on the last day of thatInterest Period;

 

exceeds:

 

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

 

“**BusinessDay**” means a day (other than a Saturday or Sunday) on which banksare open for general business in Frankfurt, Helsinki, London and Stockholm, and(in relation to any date for payment in or purchase of euro) which is a TARGETDay and (in relation to any date for payment or purchase of a currency otherthan euro) the principal financial centre of the country of that currency.

 

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

 

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

 

(c)                                   freely withdrawable on demand;

 

(d)                                  not subject to any Security or Quasi Security (other thanpursuant 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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or Sparkassen (*AllgemeineGeschäftsbedingungen der Banken oder Sparkassen*) with whom anymember of the Group maintains its banking arrangements);

 

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

 

(f)                                     capable of being remitted to an Obligor.

 

“**Cash EquivalentInvestments**” means:

 

(g)                                  securities with a maturity of less than 12 months from thedate 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;

 

(h)                                  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

 

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

 

in each case not subject to any Security or QuasiSecurity (other than pursuant to any Security Document or any PermittedSecurity constituted by a lienarising under the general terms and conditions of banks or Sparkassen (*Allgemeine Geschäftsbedingungen der Banken oder Sparkassen*)with whom any member of the Group maintains its banking arrangements),denominated and payable in freely transferable and freely convertible currencyand 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 8 (*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**” meansan 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.

 

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

 

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

 

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

 

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

 

(ii)                               fromcommunicating with other Parties in accordance with the terms of the FinanceDocuments,

 

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

 

“**EBITDA**” hasthe 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-made structures, whether above or belowground);

 

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

 

(c)                                   land(including land under water).

 

“**EnvironmentalLaw**” means all laws and regulations of any relevant jurisdictionwhich:

 

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

 

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

 

(c)                                   relateto Hazardous Substances or health and safety matters.

 

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

 

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

 

(a)                                  theapplicable Screen Rate; or

 

(b)                                (ifno Screen Rate is available for the Interest Period of that Loan) thearithmetic mean of the rates (rounded upwards to four decimal places) assupplied to the Agent at its 

 

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

 

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

 

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

 

“**Exceptional Items**”has the meaning given to it in Clause 31 (*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 facility madeavailable under this Agreement as described in Clause 9 (*The**Facilities*).

 

“**Facility ACommitment**” means:

 

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

 

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

 

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

 

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

 

“**Facility****A Repayment Date**” means each date specifiedin Clause 17.1 (*Repayment of Facility ALoans*) for the payment of a Repayment Instalment.

 

“**Facility****B**” means the revolving credit facility madeavailable 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 BCommitment**” means:

 

(a)                                   inrelation to an Original Lender, the amount in the Base Currency set oppositeits name under the heading “Facility B Commitment” in Part II  of Schedule 1 (*The Original**Parties*)and the amount of any other Facility B Commitment transferred to it under thisAgreement; and

 

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

 

to the extent not cancelled, reduced or transferred by itunder this Agreement (including a reduction pursuant to Clause 16 (*Ancillary Facilities*)).

 

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

 

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

 

“**Facility Office**”means the office or offices notified by a Lender to the Agent in writing on orbefore the date it becomes a Lender (or, following that date, by not less thanfive Business Days’ written notice) as the office or offices through which itwill 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*).

 

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

 

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

 

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

 

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

 

(a)                                   moneysborrowed;

 

(b)                                  anyamount raised by acceptance under any acceptance credit facility or dematerialisedequivalent;

 

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

 

(d)                                  theamount of any liability in respect of any Finance Lease;

 

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

 

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

 

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

 

(h)                                  shareswhich are expressed to be redeemable at the option of the holder prior to theTermination Date;

 

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

 

8

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institutionin respect 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)                                      theamount of any liability in respect of any guarantee or indemnity for any of theitems 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:

 

(j)                                     sharepledge agreement over the shares in Finnish Holdco;

 

(k)                                  sharepledge agreement over the shares in Kemira Pigments;

 

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

 

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

 

“**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**” meansgenerally 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)                                   theglobal assignment agreement in respect of receivables owned by the Company;

 

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

 

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

 

(d)                                  theglobal assignment agreement in respect of receivables owned by SachtlebenChemie;

 

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

 

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

 

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(g)                                 anyother Security Document requested by the Security Agent in accordance with theterms of the Finance Documents.

 

“**Group**” means:

 

(n)                                 fromthe date of this Agreement to the date of first Utilisation of any Facility,the Company, Sachtleben Chemie, Finnish Holdco, Kemira Pigments, Pigment ChemieGmbH and Sachtleben Trading (Shanghai) Company Limited and any entity acquiredafter the date of this Agreement (other than pursuant to a transactioncontemplated by steps 1-17, as set out in the section of the Structuring Reportentitled “JV - Structure for Europe”) which upon acquisition becomes aSubsidiary of the Company; and

 

(o)                                 fromthe date of first Utilisation of any Facility, the Company and its Subsidiariesfor the time being.

 

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

 

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

 

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

 

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

 

“**IFRS**” meansinternational accounting standards within the meaning of the IAS Regulation1606/2002 to the extent applicable to the relevant financial statements.

 

“**Information Memorandum**”means the document in the form approved by the Company concerning the Groupwhich, at the Company’s request and on its behalf, was prepared in relation tothis transaction and distributed by the Arranger to selected financialinstitutions 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.

 

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

 

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

 

“**Issuing Bank**”means Merchant Banking, Skandinaviska Enskilda Banken AB (publ) and any 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 Guarantee issued or tobe 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:

 

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

 

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

 

(v)                                 theMaster Agreement regarding the Implementation of the Titanium Dioxide JointVenture dated 21 May 2008; and

 

(vi)                              anyother 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*)*.*

 

“**LegalReservations**” means:

 

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

 

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

 

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

 

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

 

“**Lender**” means:

 

(a)                                  anyOriginal Lender; and

 

(b)                                 anybank, financial institution, trust, fund or other entity which has become aParty in accordance with Clause 34 (*Changesto the Lenders*),

 

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

 

“**Letter of Credit**”means a letter of credit, substantially in the form set out in Schedule 11 (*Form of Letter of Credit*) or in anyother form requested by a Borrower and agreed by the Agent and the IssuingBank.

 

“**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)                                  theapplicable Screen Rate; or

 

(b)                                 (ifno Screen Rate is available for the currency or Interest Period of that Loan)the arithmetic mean of the rates (rounded upwards to four decimal places) assupplied to the Agent at its request quoted by the Reference Banks to leadingbanks in the London interbank market,

 

as of the Specified Time on the Quotation Day for theoffering of deposits in the currency of that Loan and for a period comparableto the Interest Period for that Loan.

 

“**LMA**” means theLoan Market Association.

 

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

 

“**MajorityLenders**” means:

 

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

 

(b)                                 atany other time, a Lender or Lenders whose participations in the Utilisationsthen outstanding aggregate more than 662/3% of all the Utilisations thenoutstanding.

 

For the purpose of this definition, the provisions of Clause9.5 (*Adjustments to Facility B Commitment*)shall not apply.

 

“**Mandatory Cost**”means the percentage rate per annum calculated by the Agent in accordance withSchedule 4 (*Mandatory Cost**formulae*).

 

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“**Margin**” means3.00 per cent. per annum, subject to adjustment in accordance with Clause 19.5(*Adjustment of Margin*).

 

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

 

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

 

(b)                                  theability of any Obligor to perform and comply with its payment obligations underany Finance Document or its obligations under Clause 31.1 (*Financialcondition*);

 

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

 

(d)                                  thevalidity, legality or enforceability of any Security expressed to be createdpursuant to any Security Document or on the priority and ranking of any of thatSecurity.

 

“**Material Subsidiary**” means:

 

(e)                                   a Subsidiary of theCompany listed in the list of Material Subsidiaries provided to the Agent underClause 4.1 (*Initial conditions precedent*);

 

(f)                                     a Subsidiary ofthe Company, the total net assets, EBITDA or total turnover of which(unconsolidated where that Subsidiary itself has Subsidiaries) as at the dateas at which its latest unaudited unconsolidated annual or quarterly financialstatements were prepared or, as the case may be, for the financial period towhich those financial statements relate account for 5 per cent. or more of theconsolidated total net assets, EBITDA or total turnover of the Group (all ascalculated by reference to the latest audited annual or quarterly consolidatedfinancial statements of the Group);

 

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

 

(h)                                  a Subsidiary ofthe Company to which has been transferred (whether in a single transaction or aseries of transactions (whether related or not)) the whole or substantially thewhole of the assets of a Subsidiary which immediately prior to such transaction(s) wasa Material Subsidiary.

 

Forthe purposes of this definition:

 

(vii)                            if a Subsidiarybecomes a Material Subsidiary under paragraph (d) above, the MaterialSubsidiary by which the relevant transfer was made shall, subject to paragraph (b) above,cease to be a Material Subsidiary; and

 

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

 

“**Month**” means aperiod starting on one day in a calendar month and ending on the numericallycorresponding day in the next calendar month, except that:

 

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

 

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

 

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

 

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

 

“**Net Interest Expenses**” has the meaning given to it in Clause31 (*Financial covenants*).

 

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

 

(a)                                  fees andtransaction costs properly incurred in connection with that sale, transfer ordisposal;

 

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

 

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

 

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

 

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

 

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

 

“**Optional Currency**”means a currency (other than the Base Currency) which complies with theconditions set out in Clause 11.3 (*Conditionsrelating to Optional Currencies*).

 

“**OriginalFinancial Statements**” means:

 

(a)                                  inrelation to the Company, the proforma unaudited consolidated financialstatements of the Group for the period ended 31 December 2007;

 

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

 

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

 

“**Original Obligor**”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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“**Participating MemberState**” means any member state of the European Communities thatadopts or has adopted the euro as its lawful currency in accordance withlegislation of the European Community relating to Economic and Monetary Union.

 

“**Party**” means aparty to this Agreement.

 

“**Pension Items**” has the meaninggiven 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:

 

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

 

(f)                                    the acquisition bya member of the Group of any share or asset sold, leased, transferred orotherwise disposed of by another member of the Group in circumstancesconstituting a Permitted Disposal;

 

(g)                                 the acquisition bya member of the Group of Cash Equivalent Investments provided that that memberof the Group creates Security over those Cash Equivalent Investments under aSecurity Document to the extent necessary to ensure that the Finance Partieswill enjoy the same or equivalent Security over those assets as that providedover assets by the acquiring Obligor or other Obligors incorporated in itsjurisdiction of incorporation; or

 

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

 

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

 

(ii)                             the acquiredcompany or business is incorporated or established, and carries on itsprincipal business, in any jurisdiction in which acquisitions are not prohibitedto be made under any law applicable to the Owners;

 

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

 

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

 

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

 

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company or business at the date ofacquisition) when aggregated with the consideration (including associated costsand expenses) for any other acquisition permitted under this paragraph (d) (andany Financial Indebtedness remaining in any such acquired companies orbusinesses at the date of acquisition) less the 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 used to fund any suchacquisition (or associated costs and expenses) or to refinance FinancialIndebtedness remaining in any such acquired companies or business does not inany financial year of the Company exceed €10,000,000 (or its equivalent inanother currency or currencies); and

 

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

 

(v)                              to the extent thatthe acquired company would constitute a Material Subsidiary or be required tobecome a Guarantor to ensure that the Company complies with its obligationsunder Clause 32.22 (*Guarantees and Security*)based on calculations for the Relevant Period referred to in paragraph (vi) belowif the relevant tests were recalculated (A) consolidating the financialstatements of the company to be acquired (consolidated if that company hasSubsidiaries) for that Relevant Period with those of the Group on a pro formabasis and (B) as if the consideration for the proposed acquisition hadbeen paid at the start of that Relevant Period, and to the extent lawful, validand effective Security, in form and substance satisfactory to the SecurityAgent, is given in favour of the Security Agent for the benefit of the FinanceParties over all the shares and material assets of the acquired company upon orimmediately following its acquisition;

 

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

 

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

 

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

 

(vii)                       if thatacquisition is of all of the issued share capital of a limited liabilitycompany, and to the extent available, the Company supplies to the Agent a copyof:

 

(A)                           the most recentannual audited financial statements of that company (consolidated if it hasSubsidiaries); and

 

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

 

(i)                                     an acquisition ofshares or securities permitted pursuant to Clause 25.23 (*Issue ofshares*); and

 

(j)                                     the acquisition ofa company which has not traded prior to the date of acquisition and has noliabilities and which on acquisition becomes a member of the Group, but onlyif, if the shares in the company are owned by an Obligor, Security over theshares of that company, in form and substance satisfactory to the Agent, iscreated in favour of the Security Trustee within 30 days of the date of itsincorporation.

 

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

 

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

 

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

 

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

 

(n)                                 arising as aresult of any Permitted Security;

 

(o)                                 of assets to aPermitted Joint Venture;

 

(p)                                 of obsolete orredundant vehicles, plant and equipment for cash and which, in the reasonableopinion of the member of the Group making the sale, transfer or disposal, arenot required for the efficient operation of its business;

 

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

 

(r)                                    of assets by anObligor to another Obligor provided that the Security Agent, acting reasonably,is satisfied that the Finance Parties will enjoy the same or equivalentSecurity over those assets;

 

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

 

(t)                                    of assets by amember of the Group which is not an Obligor to an Obligor provided that theSecurity Agent, acting reasonably, is satisfied that the Finance Parties willenjoy the same or equivalent Security over those assets as that provided overassets of that type by the acquiring Obligor or other Obligors incorporated inits jurisdiction of incorporation 

 

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

 

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

 

(v)                                 which is a leaseor licence of real property granted in the ordinary course of trading of thedisposing entity;

 

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

 

(x)                                  where the netconsideration receivable (when aggregated with the net consideration receivablefor any other sale, lease, transfer or other disposal, other than any permittedunder paragraphs (a) to (m) above), does not exceed €10,000,000 (orits equivalent in another currency or currencies) in any financial year of theCompany.

 

“**Permitted Financial Indebtedness**” means:

 

(y)                                 any FinancialIndebtedness arising under any Finance Document;

 

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

 

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

 

(bb)                          any FinancialIndebtedness arising under a Permitted Joint Venture;

 

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

 

(dd)                          any FinancialIndebtedness to the extent covered by a Letter of Credit or Bank Guarantee or aguarantee, bond or letter of credit issued under an Ancillary Facility;

 

(ee)                            any FinancialIndebtedness arising under a Finance Lease the aggregate principal amount ofwhich when aggregated with the Financial Indebtedness under each other FinanceLease entered into by members of the Group does not at any time exceed€2,000,000 (or its equivalent in another currency or currencies);

 

(ff)                                any FinancialIndebtedness arising under a Permitted Hedging Transaction;

 

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(gg)                          anyFinancial Indebtedness of any person acquired by a member of the Group afterthe date of this Agreement which is incurred under arrangements in existence atthe date of acquisition, but not incurred or increased or its maturity dateextended in contemplation of, or since, that acquisition, and outstanding onlyfor a period of three months following the date of acquisition;

 

(hh)                          anyFinancial Indebtedness approved by the Agent (acting on the instructions of theMajority Lenders);

 

(ii)                                  theReborrowing Loan; or

 

(jj)                                  any FinancialIndebtedness not falling within paragraphs (a) to (k) above, theaggregate outstanding principal amount of which across the Group does not atany time exceed €4,000,000 (or its equivalent in another currency orcurrencies).

 

“**Permitted Guarantee**” means:

 

(kk)                            any guaranteearising under any Finance Document;

 

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

 

(mm)                      any guaranteeissued by an Obligor in respect of the obligations or liabilities of anotherObligor (including any guarantee in respect of a netting or set-off arrangemententered into by that Obligor in the ordinary course of its banking arrangementsfor the purpose of netting debit and credit balances of Obligors);

 

(nn)                          any guaranteeissued by an Obligor in relation to the obligations or liabilities of a memberof the Group which is not an Obligor (including any guarantee in respect of anetting or set-off arrangement entered into by that Obligor in the ordinarycourse of its banking arrangements for the purpose of netting debit and creditbalances of members of the Group) provided that the aggregate principal amountguaranteed at any time does not, when aggregated with the amount of any loansoutstanding at that time which are permitted under paragraph (c) of thedefinition of Permitted Loan, exceed €3,000,000 (or its equivalent in anothercurrency or currencies);

 

(oo)                          any guaranteeissued by a member of the Group which is not an Obligor in respect of theobligations or liabilities of another member of the Group which is not anObligor (including any guarantee in respect of a netting or set-off arrangemententered into by that member of the Group in the ordinary course of its bankingarrangements for the purpose of netting debit and credit balances of members ofthe Group);

 

(pp)                          any guaranteeissued by a member of the Group which is not an Obligor in respect of theobligations or liabilities of an Obligor (including any guarantee in respect ofa netting or set-off arrangement entered into by that member of the Group inthe ordinary course of its banking arrangements for the purpose of nettingdebit and credit balances of members of the Group);

 

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

 

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(rr)                                any guaranteeissued by a member of the Group on arm’s length terms and in the ordinarycourse of its trading, to the extent that it is not in respect of FinancialIndebtedness, nor to or for the benefit of, nor in respect of the liabilitiesor obligations of, another member of the Group;

 

(ss)                            any customaryindemnity to a purchaser in relation to a Permitted Disposal provided that themaximum potential liability under any such indemnity does not exceed theconsideration received by the Group for that disposal;

 

(tt)                                any guaranteeissued in respect of another member of the Group’s liabilities or obligationsas lessee under any lease of real property;

 

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

 

(vv)                           any guaranteeissued by a person acquired by a member of the Group after the date of thisAgreement which is issued under arrangements in existence at the date ofacquisition but not issued or its maturity date extended in contemplation of,or since, that acquisition, and outstanding only for a period of three monthsfollowing the date of acquisition;

 

(ww)                      the counterindemnity to be granted by Kemira Pigments in connection with a letter ofcredit for an amount up to €17,000,000 relating to the Reborrowing Loan;

 

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

 

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

 

“**Permitted HedgingTransaction**” means:

 

(zz)                            any derivativetransaction required by the Hedging Letter and documented by a HedgingDocument;

 

(aaa)                      interest ratehedging agreements and spot and forward delivery foreign exchange contractsentered into in the ordinary course of business and not for speculativepurposes; and

 

(bbb)                   any derivativetransaction entered into in connection with protection against or benefit fromfluctuation in any rate or price (including in relation to electricity) andentered into for the hedging of actual or projected real exposures arising inthe ordinary course of trading activities of a member of the Group and not forspeculative purposes.

 

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

 

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

 

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

 

(ddd)                   the Joint Ventureis incorporated or established, and carries on its principal business, in anyjurisdiction in which joint ventures are not prohibited to be entered intounder any law applicable to the Owners;

 

(eee)                      the Joint Venturecarries on, or is, a business substantially the same as, or similar orcomplementary to, that carried on by the Group; and

 

(fff)                            the amount thatany member of the Group invests in or pays to acquire any share or interest in,or the value of the assets that any member of the Group transfers or lends to,or the actual or contingent liability of any member of the Group under anyguarantee, Security or Quasi Security for the obligations of, or any liability(whether actual or contingent and whether present or future) of any member ofthe Group in respect of, the Joint Venture, does not in any financial year ofthe Company exceed in aggregate €2,000,000 (or its equivalent in anothercurrency or currencies).

 

“**Permitted Loan**” means:

 

(ggg)                   any trade creditextended by any member of the Group to its customers on normal commercial termsand in the ordinary course of its trading activities;

 

(hhh)                   any loan, creditor other arrangement having a similar effect, made by an Obligor to anotherObligor;

 

(iii)                             any loan, creditor other arrangement having a similar effect, made by an Obligor to anothermember of the Group which is not an Obligor provided that the aggregateprincipal amount of all such loans, credit or other arrangements having asimilar effect, outstanding at any time does not, when aggregated with theamount 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;

 

(jjj)                             a loan, credit orother arrangement having a similar effect made by a member of the Group whichis not an Obligor to another member of the Group which is not an Obligor;

 

(kkk)                    a loan, credit orother arrangement having a similar effect made by a member of the Group whichis not an Obligor to an Obligor if that member of the Group has entered into asubordination agreement in form and substance satisfactory to the Agent;

 

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

 

(mmm)           a loan, credit orother arrangement having a similar effect which constitutes Permitted FinancialIndebtedness;

 

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

 

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

 

(ooo)                   any loan, creditor other arrangement having a similar effect constituting deferredconsideration on any Permitted Disposal until the date which is six monthsafter the date of the relevant disposal;

 

(ppp)                   the US JV Loan; or

 

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

 

“**Permitted Security**” means:

 

(rrr)                            any Security orQuasi-Security listed in Part I of Schedule 9 (*ExistingSecurity*) except to the extent the principal amount secured by thatSecurity exceeds the amount stated in that Schedule;

 

(sss)                      any lien arisingby operation of law and in the ordinary course of trading and not as a resultof any default or omission by any member of the Group;

 

(ttt)                            any retention oftitle arrangements and rights of set-off arising in the ordinary course oftrading with suppliers of goods to any member of the Group and not as a resultof any default or omission by any member of the Group;

 

(uuu)                   any Security orQuasi Security created pursuant to any Finance Document;

 

(vvv)                   any Security orQuasi Security over or affecting any asset acquired by a member of the Groupafter the date of this Agreement, if:

 

(i)                                the Security orQuasi Security was not created in contemplation of the acquisition of thatasset by a member of the Group;

 

(ii)                             the principalamount secured has not been increased in contemplation of or since theacquisition of that asset by a member of the Group; and

 

(iii)                          the Security orQuasi Security is removed or discharged within three months of the date of acquisitionof such asset;

 

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

 

(i)                                the Security orQuasi Security was not created in contemplation of the acquisition of thatcompany;

 

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(ii)                             the principalamount secured has not increased in contemplation of or since the acquisitionof that company; and

 

(iii)                          the Security orQuasi Security is removed or discharged within three months of that companybecoming a member of the Group;

 

(xxx)                       any Security orQuasi Security arising under any Finance Lease and provided that the FinancialIndebtedness secured thereby is permitted under paragraph (g) of thedefinition of Permitted Financial Indebtedness;

 

(yyy)                 any Security orQuasi Security over goods and documents of title to goods arising in the ordinarycourse of letter of credit transactions not prohibited by this Agreement;

 

(zzz)                       any netting orset-off arrangement entered into by a member of the Group in the ordinarycourse of its banking arrangements for the purpose of netting debit and creditbalances of members of the Group, provided that (1) the arrangement onlypermits credit balances of Obligors to be netted or set off against debitbalances of members of the Group which are not Obligors to the extent that theaggregate amount of credit balances available for set-off at any time does not,when aggregated with the amount of any loans outstanding at that time which arepermitted under paragraph (c) of the definition of Permitted Loan, exceed€3,000,000 (or its equivalent in another currency or currencies); and (2) ifthe arrangement gives rise to other Security or Quasi Security over the assetsof Obligors in support of liabilities of members of the Group which are notObligors, the aggregate amount of those liabilities at any time, when aggregatedwith the amounts in paragraph (1) above, does not exceed €2,000,000 (orits equivalent in another currency or currencies);

 

(aaaa)              any Quasi Securityarising as a result of a sale, transfer or other disposal which is a PermittedDisposal;

 

(bbbb)          any lien arisingunder the general terms and conditions of banks or Sparkassen (*Allgemeine Geschäftsbedingungen der Banken oder Sparkassen*)with whom any member of the Group maintains its banking arrangements;

 

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

 

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

 

“**Permitted Transaction**” means:

 

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

 

(ffff)                      thesolvent liquidation or reorganisation of any member of the Group which is notan Obligor so long as any payments or assets distributed as a result of suchliquidation or reorganisation are distributed to other members of the Group; or

 

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(gggg)            a merger on asolvent basis of Finnish Holdco and Kemira Pigments pursuant to the StructuringReport where:

 

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

 

(ii)                             the survivingentity of that merger is liable for the obligations of the Obligor it hasmerged 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.

 

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

 

“**PwC Financial DueDiligence Report**” means the report prepared byPricewaterhouseCoopers Aktiengesellschaft Wirtschaftsprüfungsgesellschaft inthe Agreed Form.

 

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

 

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

 

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

 

(iiii)                          sell, transfer orotherwise dispose of any of its assets on terms whereby they are or may beleased to or re-acquired by any other member of the Group;

 

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

 

(kkkk)              enter into anyarrangement under which money or the benefit of a bank or other account may beapplied, set-off or made subject to a combination of accounts; or

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“**Relevant Interbank Market**”means, in relation to euro, the European interbank marketand, in relation to any othercurrency, 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 orintended to be subject to the Security to be created by it is situated;

 

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

 

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

 

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

 

“**Repayment Instalment**”means each instalment for repayment of the Facility A Loan specified in Clause17.1 (*Repayment**of**FacilityA Loans*).

 

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

 

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

 

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

 

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

 

(b)                                  theaggregate amount of which is equal to or less than (i) the maturingFacility B Loan or (ii) the amount of the claim under the Letter of Creditor Bank Guarantee;

 

(c)                                   inthe same currency as (i) the maturing Facility B Loan (unless it arose asa result of the operation of Clause 15.2 (*Unavailabilityof a currency*)) or (ii) the claim under the Letter of Credit orBank Guarantee; and

 

(d)                                  madeor to be made to the same Borrower for the purpose of (i) refinancing a maturingFacility B Loan or (ii) satisfying the obligations of the Borrower to paythe amount of a claim under the Letter of Credit or Bank Guarantee to the Agentfor the Issuing Bank.

 

“**SachtlebenChemie**” means Sachtleben Chemie GmbH, a limited liability companyincorporated under the laws of Germany (*Gesellschaft mitbeschränkter Haftung*) and registered 

 

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with the commercialregister (*Handelsregister*) of the local court (*Amtsgericht*) of Duisburg under the registration number HR B1 96 69.

 

“**Screen Rate**”means:

 

(a)                                   inrelation to LIBOR, the British Bankers Association Interest Settlement Rate forthe relevant currency and period; and

 

(b)                                  inrelation to EURIBOR, the percentage rate per annum determined by the BankingFederation of the European Union for the relevant period,

 

displayed on the appropriate page of the Reutersscreen. If the agreed page is replaced or service ceases to be available,the Agent may specify another page or service displaying the appropriaterate 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.

 

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

 

“**Security Property**”has the meaning given to it in Schedule 7 (*Securityagency provisions*).

 

“**Selection Notice**”means a notice substantially in the form set out in Part II of Schedule 3(*Requests*) given in accordancewith Clause 20 (*Interest Periods*)in relation to Facility A.

 

“**Shareholder Loan**”means:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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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)                                   whichis controlled, directly or indirectly, by the holding company;

 

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

 

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

 

(d)                                  whichis a subsidiary (*Tochterunternehmen*) in themeaning of section 290 of the German Commercial Code (*Handelsgesetzbuch*)or

 

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

 

and, for this purpose, a company or corporation or otherlegal entity shall be treated as being controlled by a holding company if suchholding company has the right or is in a factual position to otherwise exercisecontrol in respect of the first within the meaning given to it in section 17 ofthe 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**” meansthe 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 TARGET2 is open for the settlement of payments in euro.

 

“**Tax**” means anytax, levy, impost, duty or other charge or withholding of a similar nature (includingany penalty or interest payable in connection with any failure to pay or anydelay 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 theaggregate of the Ancillary Commitments, being zero at the date of thisAgreement.

 

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

 

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

 

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

 

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

 

“**Transfer Certificate**”means a certificate substantially in the form set out in Schedule 5 (*Form of Transfer Certificate*) or anyother form agreed between the Agent and the Company.

 

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

 

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

 

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

 

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

 

“**US JV Loan**”means:

 

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

 

(ii)                               theloan 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).

 

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

 

“**Utilisation Request**”means a notice substantially in the form set out in Part I, or (inrelation to a letter of credit or bank guarantee) a notice substantially in theform set out in Part III of Schedule 3 (*Requests*).

 

“**VAT**” meansvalue added tax as provided for in the Value Added Tax Act 1994 and any othertax of a similar nature.

 

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

 

**8.2**                           Construction

** **

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

 

(i)                                      the“**Agent**”, any “**AncillaryLender**”, 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 present and futureproperties, revenues and rights of every description;

 

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

 

(A)                           aBorrower paying an amount in the currency of the Letter of Credit or BankGuarantee 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)                            theaccount is with the Agent or the Issuing Bank (if the cash cover is to beprovided for all the Lenders) or with a Lender (if the cash cover is to beprovided for that Lender) or, in relation to an Ancillary Facility, therelevant Ancillary Lender;

 

(bb)                          withdrawalsfrom the account may only be made to pay a Finance Party amounts due andpayable to it under this Agreement in respect of that Letter of Credit, BankGuarantee or contingent liability under that Ancillary Facility until no amountis or may be outstanding under that Letter of Credit, Bank Guarantee orcontingent liability under that Ancillary Facility; and

 

(cc)                            ifthe Issuing Bank or Ancillary Lender requires, the Borrower has executed asecurity document, in form and substance satisfactory to the Agent or theFinance Party with which that account is held, creating a first rankingsecurity interest over that account; or

 

(B)                             aBorrower procuring that a bank guarantee be issued in favour of the IssuingBank or, as the case may be, the Ancillary Lender (in form and substancesatisfactory to it) by a bank acceptable to the Issuing Bank or, as the casemay 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(however fundamentally and whether or not more onerously) or replaced andincludes any change in the purpose of, any extension of or any increase in anyfacility or the addition of any new facility under that Finance Document orother agreement or instrument;

 

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

 

(vi)                               a“**person**” includes any individual,firm, company, corporation, government, state or agency of a state or anyassociation, trust, joint venture, consortium or partnership (whether or nothaving separate legal personality);

 

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

 

(A)                           thatBorrower providing cash cover for that Letter of Credit, or Bank Guarantee orthose Ancillary Outstandings;

 

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

 

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

 

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

 

(viii)                         a“**regulation**” includes anyregulation, rule, official directive, request or guideline (whether or nothaving the force of law) of any governmental, intergovernmental orsupranational body, agency, department or regulatory, self-regulatory or otherauthority or organisation;

 

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

 

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

 

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

 

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

 

(d)                           ADefault is “**continuing**” if it has not beenremedied or waived.

 

**8.3**                           ThirdParty Rights

** **

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

 

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**SECTION 2**

** **

**The Facilities**

** **

**9.**                                 THE FACILITIES

** **

**9.1**                           TheFacilities

** **

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

 

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

 

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

 

**9.2**                           FinanceParties’ rights and obligations

** **

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

 

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

 

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

 

**10.**                           PURPOSE

** **

**10.1**                     Purpose

** **

(a)                            EachBorrower shall apply all amounts borrowed by it under Facility A towardsrefinancing the Existing Debt of the Original Obligors, the acquisition ofshares 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)                           EachBorrower shall apply all amounts borrowed by it under Facility B to finance (i) itsworking capital requirements and/or (ii) its general corporate purposes,including bank guarantees and letters of credit, provided that no Borrowershall apply amounts borrowed by it under Facility B to finance or refinance JVCosts.

 

**10.2**                     Monitoring

** **

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

 

**11.**                           CONDITIONS OF UTILISATION

** **

**11.1**                     Initialconditions precedent

** **

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

 

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

 

**11.2**                     Furtherconditions precedent

** **

(a)                            TheLenders 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) ofthis Clause 4.2) on the proposed Utilisation Date:

 

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

 

(A)                           specifyingproforma EBITDA (or a minimum amount thereof) of the Group (assuming steps 1 to17, as set out in the section of the Structuring Report entitled “JV -Structure for Europe”, have been completed in accordance with the StructuringReport) for the Relevant Period ending on the Quarter Date immediatelypreceding the date of that Utilisation Request; and

 

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

 

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

 

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

 

**11.3**                     Conditionsrelating to Optional Currencies

** **

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

 

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

 

(ii)                                  itis US dollars or has been approved by the Agent (acting on the instructions ofall the Lenders) on or prior to receipt by the Agent of the relevantUtilisation Request or Selection Notice for that Utilisation.

 

(b)                           Ifby the Specified Time the Agent has received a written request from the Companyfor a currency to be approved under paragraph (a)(ii) above, the Agentwill 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)                                     whetheror not the Lenders have granted their approval; and

 

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

 

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**11.4**                     Maximumnumber of Utilisations

** **

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

 

(i)                                      morethan 6 Facility A Loans would be outstanding;

 

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

 

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

 

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

 

(c)                            AnyLoan made by a single Lender under Clause 15.2 (*Unavailability of a currency*) shall not be taken intoaccount 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 a Loan bydelivery to the Agent of a duly completed Utilisation Request not later thanthe Specified Time.

 

**12.2**                     Completionof a Utilisation Request

** **

(a)                            EachUtilisation Request for a Loan is irrevocable and will not be regarded ashaving been duly completed unless:

 

(i)                                      itspecifies that it is for a Loan;

 

(ii)                                   itidentifies the Facility to be utilised;

 

(iii)                                theproposed Utilisation Date is a Business Day within the Availability Periodapplicable to that Facility;

 

(iv)                               thecurrency and amount of the Utilisation comply with Clause 5.3 (*Currency and amount*);

 

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

 

(vi)                               itspecifies the account and bank (which must be in the principal financial centreof the country of the currency of the Utilisation or, in the case of euro, theprincipal financial centre of a Participating Member State in which banks areopen for general business on that day or London) to which the proceeds of theUtilisation are to be credited.

 

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

 

**12.3**                     Currencyand amount

** **

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

 

(b)                           Theamount of the proposed Loan must be:

 

(i)                                     ifthe currency selected is the Base Currency, a minimum of €10,000,000 (andintegral 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)                                  ifthe currency selected is US dollars, a minimum of $5,000,000 (and integralmultiples of $1,000,000 thereafter) or, if less, the Available Facility;

 

(iii)                               ifthe currency selected is any other Optional Currency, the minimum amount (and,if required, integral multiple) specified by the Agent pursuant to paragraph(b)(ii) of Clause 4.3 (*Conditionsrelating to Optional Currencies*) or, if less, the AvailableFacility; and

 

(iv)                              inany event such that its Base Currency Amount is less than or equal to theAvailable Facility; and

 

(v)                                 incompliance with Clause 5.3(c).

 

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(c)                            EachBorrower may borrow Facility A Loans in the maximum aggregate amounts asfollows:

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

 

unless set out otherwise in the Structuring Report andagreed with the Agent.

 

**12.4**                     Lenders’participation

** **

(a)                            Ifthe conditions set out in this Agreement have been met, each Lender shall makeits participation in each Loan available by the Utilisation Date through itsFacility Office.

 

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

 

(c)                            TheAgent shall determine the Base Currency Amount of each Loan which is to be madein an Optional Currency and shall notify each Lender of the amount, currencyand the Base Currency Amount of each Loan and the amount of its participationin that Loan, in each case, by the Specified Time.

 

**12.5**                     Cancellationof Commitment

** **

(a)                            TheTotal Facility A Commitments shall be immediately cancelled at the end of theAvailability Period for Facility A.

 

(b)                           TheTotal Facility B Commitments shall be immediately cancelled at the end of theAvailability Period for Facility B.

 

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

** **

**13.1**                     General

** **

(a)                            Inthis Clause 13 and Clause 14 (*Letters ofCredit and Bank Guarantees*):

 

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

 

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

 

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

 

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

 

(v)                                  “**Term**” means each period determined underthis Agreement for which the Issuing Bank is under a liability under a Letterof Credit or Bank Guarantee.

 

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(b)                           Anyreference in this Agreement to:

 

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

 

(ii)                                  anamount borrowed includes any amount utilised by way of Letter of Credit or BankGuarantee;

 

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

 

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

 

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

 

(vi)                              anoutstanding amount of a Letter of Credit or Bank Guarantee at any time is themaximum amount that is or may be payable by a Borrower in respect of thatLetter of Credit or Bank Guarantee at that time;

 

(c)                            Clause12 (*Utilisation - Loans*) does notapply to a Utilisation by way of Letter of Credit or Bank Guarantee.

 

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

 

**13.2**                     FacilityB

** **

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

 

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

** **

A Borrower may request a Letter of Credit or Bank Guaranteeto be issued by delivery to the Agent of a duly completed Utilisation Requestsubstantially in the form of Part III of Schedule 3 (*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 Credit or BankGuarantee is irrevocable and will not be regarded as having been duly completedunless:

 

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

 

(b)                                  theproposed Utilisation Date is a Business Day within the Availability Periodapplicable to Facility B;

 

(c)                                   thecurrency and amount of the Letter of Credit or Bank Guarantee comply withClause 5.3 (*Currency and amount*);

 

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

 

(e)                                   theExpiry Date of the Letter of Credit or Bank Guarantee falls on or before thedate falling three Months after the Termination Date (for the avoidance ofdoubt, 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)                                     thedelivery instructions for the Letter of Credit or Bank Guarantee are specified;and

 

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

 

**13.5**                     Currencyand amount

** **

(a)                            Thecurrency specified in a Utilisation Request must be the Base Currency or anOptional Currency.

 

(b)                           Theamount of the proposed Letter of Credit or Bank Guarantee must be an amountwhose Base Currency Amount is not more than the Available Facility and whichis:

 

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

 

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

 

(iii)                               ifthe currency selected is any other Optional Currency, the minimum amount (and,if required, integral multiple) specified by the Agent pursuant to paragraph(b)(ii) of Clause 4.3 (*Conditionsrelating to Optional Currencies*) or, if less, the AvailableFacility,

 

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

 

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

** **

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

 

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

 

(i)                                      inthe case of a Letter of Credit or Bank Guarantee renewed in accordance withClause 6.7 (*Renewal of a Letter of Credit orBank Guarantee*), no Event of Default is continuing or would resultfrom the proposed Utilisation and, in the case of any other Utilisation, noDefault is continuing or would result from the proposed Utilisation; and

 

(ii)                                   theRepeating Representations to be made by each Obligor are true.

 

(c)                            Theamount of each Lender’s participation in each Letter of Credit or BankGuarantee will be equal to the proportion borne by its Available Commitmentunder Facility B to the Available Facility under Facility B immediately priorto the issue of the Letter of Credit or Bank Guarantee.

 

(d)                           TheAgent shall determine the Base Currency Amount of each Letter of Credit or BankGuarantee which is to be issued in an Optional Currency and shall notify theIssuing Bank and each Lender of the details of the requested Letter of Creditor Bank Guarantee and its participation in that Letter of Credit or BankGuarantee by the Specified Time.

 

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**13.7**                     Renewalof a Letter of Credit or Bank Guarantees

** **

(a)                            ABorrower may request any Letter of Credit or Bank Guarantee issued on itsbehalf be renewed by delivery to the Agent of a Renewal Request by theSpecified Time.

 

(b)                           TheFinance 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)                            Theterms of each renewed Letter of Credit or Bank Guarantee shall be the same asthose of the relevant Letter of Credit or Bank Guarantee immediately prior toits renewal, except that:

 

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

 

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

 

(d)                           Ifthe conditions set out in this Agreement have been met, the Issuing Bank shallamend and re-issue any Letter of Credit or Bank Guarantee pursuant to a RenewalRequest.

 

**13.8**                     Revaluationof Letters of Credit and Bank Guarantees

** **

(a)                            Ifany Letter of Credit or Bank Guarantee is denominated in an Optional Currency,the Agent shall at six monthly intervals after the date of this Agreement,recalculate the Base Currency Amount of each Letter of Credit and BankGuarantee 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)                           ABorrower shall, (i) if the calculation under paragraph (a) aboveshows that the Base Currency Amount of such Letters of Credit or BankGuarantees exceeds an amount equal to 105 per cent. of the Total Facility BCommitments; and (ii) if requested by the Agent within 3 days of anycalculation under paragraph (a) above, ensure that within three BusinessDays sufficient Facility B Utilisations are prepaid to prevent the BaseCurrency Amount of the Facility B Utilisations exceeding an amount equal to theTotal Facility B Commitments following any adjustment to a Base Currency Amountunder paragraph (a) above.

 

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

** **

**14.1**                     Immediatelypayable

** **

If a Letter of Credit or Bank Guarantee or any amountoutstanding under a Letter of Credit or Bank Guarantee is expressed to beimmediately 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)                            Notwithstandingany other provision of this Agreement, the consent of the Issuing Bank isrequired for any assignment or transfer of any Lender’s rights and/orobligations in respect of any outstanding Letter of Credit or Bank Guarantee.

 

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(b)                           Ifparagraph (a) and the conditions and procedure for transfer specified inClause 34 (*Changes to the Lenders*)are satisfied, then on the Transfer Date the Issuing Bank and the New Lendershall acquire the same rights and assume the same obligations betweenthemselves as they would have acquired and assumed had the New Lender been anOriginal Lender with the rights and/or obligations acquired or assumed by it asa result of the transfer and to that extent the Issuing Bank and the ExistingLender shall each be released from further obligations to each other under thisAgreement.

 

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

** **

(a)                            EachBorrower shall (and the Company shall ensure that each Borrower shall) pay tothe Issuing Bank a fronting fee in respect of each Letter of Credit and BankGuarantee requested by it in the amount and at the times agreed in the letterdated on or about the date of this Agreement between the Issuing Bank and theCompany.

 

(b)                           EachBorrower shall pay to the Agent (for the account of each Lender) a letter ofcredit fee in arrear computed at the rate of the applicable Margin on theoutstanding amount of each Letter of Credit or Bank Guarantee requested by itfor the period from the issue of that Letter of Credit or Bank Guarantee untilits Expiry Date.  This fee shall bedistributed according to each Lender’s Proportion of that Letter of Credit orBank Guarantee.

 

(c)                            Theaccrued letter of credit fee on the Letters of Credit and Bank Guarantees shallbe consolidated and payable on the last day of each successive period of threemonths (or such shorter period as shall end on the Expiry Date for that Letterof Credit or Bank Guarantee) starting on the date of this Agreement.

 

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

 

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

 

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

 

**14.4**                     Claimsunder a Letter of Credit or Bank Guarantee

** **

(a)                            EachBorrower irrevocably and unconditionally authorises the Issuing Bank to pay anyclaim made or purported to be made under a Letter of Credit or Bank Guaranteerequested by it and which appears on its face to be in order (a “**claim**”).

 

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

 

(c)                            EachBorrower acknowledges that the Issuing Bank:

 

(i)                                      isnot obliged to carry out any investigation or seek any confirmation from anyother person before paying a claim; and

 

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

 

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

 

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

 

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

 

**14.5**                     Indemnities

** **

(a)                            EachBorrower shall immediately on demand indemnify the Issuing Bank against anycost, loss or liability incurred by the Issuing Bank (otherwise than by reasonof the Issuing Bank’s gross negligence or wilful misconduct) in acting as theIssuing Bank under any Letter of Credit or Bank Guarantee requested by thatBorrower.

 

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

 

(c)                            Ifany Lender is not permitted (by its constitutional documents or any applicablelaw) to comply with paragraph (b) above), then that Lender will not beobliged to comply with paragraph (b) and shall instead be deemed to havetaken, 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)                           TheBorrower which requested a Letter of Credit or Bank Guarantee shall immediatelyon demand reimburse any Lender for any payment it makes to the Issuing Bankunder this Clause 14.5 (*Indemnities*)in respect of that Letter of Credit or Bank Guarantee.

 

(e)                            Theobligations of each Lender under this Clause are continuing obligations andwill extend to the ultimate balance of sums payable by that Lender in respectof any Letter of Credit or Bank Guarantee, regardless of any intermediatepayment or discharge in whole or in part.

 

(f)                              Theobligations of any Lender under this Clause will not be affected by any act, omission, matter or thing which, butfor this Clause, would reduce, release or prejudice any of its obligationsunder this Clause  (without limitationand whether or not known to it or any other person) including:

 

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

 

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

 

(iii)                               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, any beneficiary under a Letter of Credit or BankGuarantee or other person or any non-presentation or non-observance of anyformality or other requirement in respect of any instrument or any failure torealise the full value of any security;

 

(iv)                              anyincapacity or lack of power, authority or legal personality of or dissolutionor change in the members or status of an Obligor, any beneficiary under aLetter of Credit or Bank Guarantee or any other person;

 

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

 

(vi)                              anyunenforceability, illegality or invalidity of any obligation of any personunder any Finance Document, any Letter of Credit, any Bank Guarantee or anyother document or security; or

 

(vii)                           anyinsolvency or similar proceedings.

 

**14.6**                     Rightsof contribution

** **

No Obligor will be entitled to any right of contribution orindemnity from any Finance Party in respect of any payment it may make under thisClause 7.

 

**14.7**                     Roleof the Issuing Bank

** **

(a)                            Nothingin this Agreement constitutes the Issuing Bank as a trustee or fiduciary of anyother person.

 

(b)                           TheIssuing Bank shall not be bound to account to any Lender for any sum or theprofit element of any sum received by it for its own account.

 

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

 

(d)                           TheIssuing Bank may rely on:

 

(i)                                     anyrepresentation, notice or document believed by it to be genuine, correct andappropriately authorised; and

 

(ii)                                  anystatement made by a director, authorised signatory or employee of any personregarding any matters which may reasonably be assumed to be within his knowledgeor within his power to verify.

 

(e)                            TheIssuing Bank may engage, pay for and rely on the advice or services of anylawyers, accountants, surveyors or other experts.

 

(f)                              TheIssuing Bank may act in relation to the Finance Documents through its personneland agents.

 

(g)                           TheIssuing Bank is not responsible for:

 

41

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

 

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

 

**14.8**                     Exclusionof liability

** **

(a)                            Withoutlimiting paragraph (b) below, the Issuing Bank will not be liable for anyaction taken by it under or in connection with any Finance Document, unlessdirectly caused by its gross negligence or wilful misconduct.

 

(b)                           NoParty (other than the Issuing Bank) may take any proceedings against anyofficer, employee or agent of the Issuing Bank in respect of any claim it mighthave against the Issuing Bank or in respect of any act or omission of any kindby that officer, employee or agent in relation to any Finance Document and anyofficer, employee or agent of the Issuing Bank may rely on this Clause.

 

**14.9**                     Creditappraisal by the Lenders

** **

Without affecting the responsibility of any Obligor forinformation supplied by it or on its behalf in connection with any FinanceDocument, each Lender confirms to the Issuing Bank that it has been, and willcontinue to be, solely responsible for making its own independent appraisal andinvestigation of all risks arising under or in connection with any FinanceDocument, including but not limited to, those listed in paragraphs (a) to (d) ofClause 36.15 (*Credit appraisal by theLenders*).

 

**14.10**               Addressfor notices

** **

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

 

**14.11**               Amendmentsand Waivers

** **

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

 

**15.**                           OPTIONAL CURRENCIES

** **

**15.1**                     Selectionof currency

** **

A Borrower (or the Company on behalf of a Borrower) shallselect the currency of a Utilisation in the Utilisation Request for a FacilityB Loan.

 

**15.2**                     Unavailabilityof a currency

** **

If before the Specified Time on any Quotation Day:

 

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(a)                                  aLender notifies the Agent that the Optional Currency requested is not readilyavailable to it in the amount required; or

 

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

 

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

 

**16.**                         ANCILLARYFACILITIES

** **

**16.1**                   Establishment of Ancillary Facilities

** **

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

 

**16.2**                   Types of Ancillary Facility

** **

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

 

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

 

(b)                                such otherfacilities as may be required and as the Agent and the relevant AncillaryLender may agree.

 

**16.3**                   Request for Ancillary Facilities

** **

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

 

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

 

(i)                                     the Borrower(s) underthat Ancillary Facility;

 

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

 

(iii)                              the type or typesof facility to comprise that Ancillary Facility (which must comply with Clause9.2 (*Types of Ancillary Facility*));

 

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

 

(v)                                 the expiry date ofthat Ancillary Facility (which must fall on or before the Termination Date);

 

(vi)                             the amount of theAncillary Commitment (which must be denominated in the Base Currency) which isto apply to that Ancillary Facility;

 

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

 

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

 

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

 

(c)                          An AncillaryFacility shall only be available for utilisation in the Base Currency or aCurrency which:

 

(i)                                    is readilyavailable in the amount required and freely convertible into the Base Currencyin the Relevant Interbank Market on the date for utilisation of that AncillaryFacility; and

 

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

 

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

 

**16.4**                   Grant of Ancillary Facility

** **

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

 

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

 

(b)                                 the proposedAncillary Commitment under that Ancillary Facility will not, when aggregatedwith the Ancillary Commitments under all other Ancillary Facilities in effecton that Commencement Date, exceed the Total Ancillary Limit; and

 

(c)                                  the proposedAncillary Lender has notified the Agent by that Commencement Date that itagrees to make available that Ancillary Facility.

 

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

 

**16.5**                   Adjustments to Facility B Commitment

** **

(a)                          The Facility BCommitment of a Lender which is an Ancillary Lender shall be reduced by theamount of its Ancillary Commitments.

 

(b)                         If and to theextent that:

 

(i)                                    any AncillaryFacility expires, or is cancelled (in whole or in part) in accordance withClause 9.8 (*Voluntary cancellation ofAncillary Facilities*); and

 

(ii)                                 no amount is ormay be payable to or by the Ancillary Lender in respect of that AncillaryFacility (or the relevant part of it),

 

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

 

**16.6**                   Terms of Ancillary Facilities

** **

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

 

(i)                                    those terms shallbe consistent with this Clause 9 and the details set out in the AncillaryFacility Request;

 

(ii)                                 utilisations underan Ancillary Facility shall be used only to finance (i) its workingcapital requirements and/or (ii) its general corporate purposes;

 

(iii)                              the rate ofinterest, fees and other remuneration in respect of the Ancillary Facilityshall be based upon the normal market rates and terms from time to time of thatAncillary Lender; and

 

(iv)                             cancellation,termination or enforcement of the Ancillary Facility shall only occur asdescribed in Clause 9.8 (*Voluntarycancellation of Ancillary Facilities*), Clause 11  (*Prepaymentand cancellation*)**orClause 26.16 (*Acceleration*).

 

(b)                         Any materialvariation to any Ancillary Facility (including any proposed increase orreduction in the Ancillary Commitment) shall be in accordance with and subjectto this Clause 9.

 

(c)                          An amendment orwaiver of any term of an Ancillary Facility shall not require the consent ofany Finance Party other than the relevant Ancillary Lender unless the amendmentor waiver relates to a matter which would require an amendment to thisAgreement. In that case, the provisions of this Agreement relating to amendmentsand waivers will apply.

 

(d)                         In the case of anyinconsistency between any term of an Ancillary Facility and any term of thisAgreement, this Agreement shall prevail.

 

**16.7**                   Limits on Ancillary Facilities

** **

TheCompany shall ensure that:

 

(a)                                  the aggregate ofall Ancillary Commitments does not at any time exceed the Total AncillaryLimit;

 

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

 

(c)                                  the aggregate ofthe Ancillary Outstandings in respect of an Ancillary Facility and the relevantAncillary Lender’s share of all other outstanding Facility B Utilisations donot at any time exceed that Ancillary Lender’s Facility B Commitment.

** **

**16.8**                   Voluntary cancellation of Ancillary Facilities

** **

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

 

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**16.9**                   Notice in respect of Ancillary Facilities

** **

(a)                          Each AncillaryLender shall promptly notify the Agent of:

 

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

 

(ii)                                 the amount of anyAncillary Facility which is cancelled or expires and the date of any suchcancellation or expiry; and

 

(iii)                              any otherinformation relating to any Ancillary Facility provided by it as the Agent mayrequest, including the Ancillary Outstandings from time to time.

 

(b)                         The Agent mayassume, unless it has received notice to the contrary in its capacity as agentfor the Lenders, that no Ancillary Facility has expired or been cancelled inwhole or part.

 

(c)                          Each Obligorconsents to all information described in paragraph (a) above beingdisclosed to the Finance Parties.

 

**16.10**             Ancillary Outstandings

** **

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

 

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** **

**SECTION 4**

** **

**REPAYMENT,PREPAYMENT AND CANCELLATION**

** **

**17.**                         REPAYMENT

** **

**17.1**                   Repaymentof Facility A Loans

** **

(a)                          TheFacility A Loans shall be repaid by Borrowers which have drawn the Facility ALoans on the following dates in an aggregate amount equal to the amounts setout 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)                         Ifthe aggregate amount of the Facility A Loans outstanding at the end of theAvailability Period for Facility A is less than €300,000,000, the amount of theFacility A Repayment Instalments shall be reduced in inverse chronologicalorder.

 

(c)                          If,in relation to a Facility A Repayment Date, the aggregate amount of theFacility 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)                         NoBorrower may reborrow any part of Facility A which is repaid.

 

**17.2**                   Repaymentof Facility B Loans

** **

(a)                          EachBorrower which has drawn a Facility B Loan shall repay that Loan on the lastday of its Interest Period.

 

(b)                         AnyFacility B Loan remaining outstanding on the Termination Date applicable toFacility B shall be repaid on that date.

 

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

 

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** **

**17.3**                   Repayment of Ancillary Facilities

** **

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

 

**18.**                         PREPAYMENT AND CANCELLATION

** **

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

** **

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

 

(a)                                  thatLender or the Issuing Bank shall promptly notify the Agent upon becoming awareof that event;

 

(b)                                 uponthe Agent notifying the Company, the Commitment of that Lender will beimmediately cancelled and the Issuing Bank shall not be obliged to issue anyLetter of Credit or Bank Guarantee;

 

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

 

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

 

**18.2**                   Illegality in relation to an Ancillary Lender

** **

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

 

(a)                                 that 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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theAgent (being no earlier than the last day of any applicable grace periodpermitted by law).

 

**18.3**                   Changeof control

** **

(a)                          Ifa Change of Control Event occurs:

 

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

 

(ii)                                 theIssuing Bank shall not be obliged to issue any Letter of Credit or BankGuarantee;

 

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

 

(iv)                             ifa Lender so requires and notifies the Agent within 30 days of the Companynotifying the Agent of the occurrence of a Change of Control Event, the Agentshall promptly notify the Company of the notification by that Lender and theCompany and that Lender shall negotiate in good faith the continuation of theparticipation of the respective Lender in the Facilities. If no agreement isreached within 30 days of the Lender notifying the Agent, the Agent shall, bynot less than 10 days’ notice to the Company (the date specified in such noticebeing the “**Relevant Lender Cancellation Date**”),cancel the Commitment of that Lender and declare the participation of thatLender in all outstanding Utilisations, together with accrued interest, and allother amounts accrued under the Finance Documents immediately due and payable,whereupon the Commitment of that Lender will be cancelled and all suchoutstanding amounts will become immediately due and payable and declare thatcash cover in respect of that Lender’s participation in each Letter of Creditor Bank Guarantee is immediately due and payable whereupon it shall becomeimmediately due and payable **provided that**the Company may, by written notice to the Agent and such Lender given in theperiod from the date such Lender notifies the Agent following the occurrence ofa Change of Control Event to the date 3 Business Days prior to the RelevantLender Cancellation Date, replace such Lender by requiring such Lender to (andsuch Lender shall) transfer pursuant to Clause 26 (*Changes to the Lenders*) all (and not part only) of itsrights and obligations under this Agreement to a Lender 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)                         Forthe purpose of paragraph (a) above “**Change of Control Event**”means:

 

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

 

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

 

**18.4**                   Voluntarycancellation

** **

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

 

**18.5**                   Mandatory prepayment - Net Sale Proceeds

** **

(a)                          The Company shallensure that an amount equal to all Net Sale Proceeds is applied in accordancewith Clause 11.6 (*Application of Net Sale Proceeds prepayment*)below.

 

(b)                         Paragraph (a) abovedoes not apply to any Net Sale Proceeds to the extent 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**                   Applicationof Net Sale Proceeds prepayment

** **

(a)                          Inthis Clause 11.6, “**Receipt Date**”means the date on which any Net Sale Proceeds to which paragraph (a) ofClause 11.5 (*Mandatory prepayment — Net Sale Proceeds*)applies (the “**Relevant Net Sale Proceeds**) havebeen received by any member of the Group.

 

(b)                         Withinfive Business Days after a Receipt Date, the Company shall notify the Agent ofthe Receipt Date and the amount in the Base Currency (the “**Euro NetSale Proceeds Amount**”) equal or equivalent to those Relevant NetSale Proceeds.

 

(c)                          Onreceipt of that notice by the Agent, the Facility A Commitment shall be reducedby an aggregate amount equal to the Euro Net Sale Proceeds Amount.

 

(d)                         TheCompany shall ensure that the Facility A Loans are prepaid (in each case, onthe earlier of 3 Months after the Receipt Date and the expiry of their InterestPeriods current when the Agent

 

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receives therelevant notice pursuant to paragraph (b) above) until Facility A Loansequal to or greater than the Euro Net Sale Proceeds Amount have been prepaid.

 

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

 

(f)                            Anyprepayment under this Clause 11.6 shall satisfy the obligationsunder Clause 10.1 (*Repayment of Facility ALoans*) in inverse chronological order.

 

**18.7**                   Mandatoryprepayment - Insurance Proceeds

** **

(a)                          TheCompany shall ensure that an amount equal to all Insurance Proceeds is appliedin accordance with Clause 11.8 (*Application of InsuranceProceeds prepayment*) below.

 

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

 

(i)                                    suchInsurance Proceeds are intended to be applied within 24 months of receipt toreplace, repair or reinstate the asset(s) to which those InsuranceProceeds relate, provided that a document, setting out in reasonable detail anyplanned replacement, repair or reinstatement is provided to the Agent within 12Months of receipt of such Insurance Proceeds; and

 

(ii)                                 suchInsurance Proceeds do not exceed €1,000,000 (or its equivalent in anothercurrency or currencies) in respect of any single claim or, when aggregated withany other Insurance Proceeds received since the date of this Agreement, exceed€3,000,000 (or its equivalent in another currency or currencies).

 

**18.8**                   Applicationof Insurance Proceeds prepayment

** **

(a)                          Inthis Clause 11.8, “**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)                         Withinfive Business Days after a Receipt Date, the Company shall notify the Agent ofthe Receipt Date and the amount in the Base Currency (the “**EuroInsurance Proceeds Amount**”) equal or equivalent to those RelevantInsurance Proceeds.

 

(c)                          Onreceipt of that notice by the Agent, the Facility A Commitment shall be reducedby an aggregate amount equal to the Euro Insurance Proceeds Amount.

 

(d)                         TheCompany shall ensure that the Facility A Loans are prepaid (in each case, onthe earlier of 3 Months after the Receipt Date and the expiry of their InterestPeriods current when the Agent receives the relevant notice pursuant toparagraph (b) above) until Facility A Loans equal to or greater than theEuro Insurance Proceeds Amount have been prepaid.

 

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

 

(f)                            Anyprepayment under this Clause 11.8 shall satisfy the obligations under Clause10.1 (*Repayment of Facility A Loans*)in inverse chronological order.

 

**18.9**                   Excludedproceeds

** **

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

 

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

 

**18.10**             Restrictionon upstream payments

** **

(a)                          Ifthere is a requirement to make a mandatory prepayment pursuant to Clause 11.5 (*Mandatory prepayment - Net Sale Proceeds*) or Clause 11.7 (*Mandatory prepayment - Insurance Proceeds*) and, in order toeffect such prepayment, moneys need to be upstreamed or otherwise transferredfrom one member of the Group to another member of the Group and:

 

(i)                                    therelevant member of the Group who needs to upstream or transfer moneys tofacilitate prepayment, having used its reasonable endeavours to make such sumsavailable, is not legally able to make payment (whether by way of dividend,loan or any other means) or some or all of such sums without any relevantofficer or director incurring a risk of personal or criminal liability or therelevant payment would result in the relevant member of the Group incurring amaterial tax liability or other material cost; and

 

(ii)                                 therelevant Borrower, having used its reasonable endeavours to fund the prepaymentfrom other resources available to the Group, is unable to procure the fundingof such prepayment,

 

then, until such time as that the impediment to prepaymentno longer applies, such prepayment shall be made in an amount equal to theaggregate of the amount the relevant Borrower is legally able to pay and theamount the relevant Borrower is able to procure from other resources availableto the Group.

 

(b)                         TheCompany shall continue to use its reasonable endeavours to procure that theprepayment which, but for this Clause 11.10, would have been due is made.  If at any time the restrictions set out inparagraph (a) above are removed, any relevant proceeds will be applied inprepayment of the Facilities on the earlier of 3 Months after the restrictionsare removed and the expiry of their Interest Periods current when therestrictions are removed and otherwise in accordance with Clauses 11.5 (*Mandatory prepayment - Net Sale Proceeds*) to 11.9 (*Excluded proceeds*).

 

**18.11**             Voluntaryprepayment of Facility A Loans

** **

(a)                          TheBorrower to which a Facility A Loan has been made may, if it gives the Agentnot less than 5 Business Days’ (or such shorter period as the Majority Lendersmay agree) prior notice, prepay the whole or any part of any Facility A Loan(but, if in part, being an amount that reduces the Base Currency Amount of theFacility A Loan by a minimum amount of €5,000,000 and integral multiples of€1,000,000 thereafter.)

 

(b)                         AFacility A Loan may only be prepaid after the last day of the AvailabilityPeriod (or, if earlier, the day on which the applicable Available Facility iszero).

 

(c)                          Anyprepayment under this Clause 11.11 shall satisfy the obligations under Clause10.1 (*Repayment of Facility A Loans*)in inverse chronological order.

 

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** **

**18.12**             Voluntaryprepayment of Facility B Utilisations

** **

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

 

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

 

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

 

**18.13**             Rightof repayment and cancellation in relation to a single Lender, Ancillary Lenderor Issuing Bank

** **

(a)                          If:

 

(i)                                    anysum payable to any Lender or Ancillary Lender or the Issuing Bank by an Obligoris required to be increased under paragraph (c) of Clause 16.2 (*Tax gross-up*); or

 

(ii)                                 anyLender or Ancillary Lender or the Issuing Bank claims indemnification from theCompany under Clause 16.3 (*Tax indemnity*)or Clause 17 (*Increased costs*),

 

the Company may, whilst the circumstance giving rise to the requirementfor gross-up or indemnification continues, give the Agent notice:

 

(iii)                              (ifsuch circumstances relate to a Lender) of cancellation of the Commitment ofthat Lender and its intention to procure the repayment of that Lender’sparticipation in the Utilisations;

 

(iv)                             (ifsuch circumstances relate to the Issuing Bank) of repayment of any outstandingLetter of Credit or Bank Guarantee issued by it and cancellation of itsappointment as an Issuing Bank under this Agreement in relation to any Letters ofCredit or Bank Guarantees to be issued in the future; or

 

(v)                                 (ifsuch circumstances relate to an Ancillary Lender) of cancellation of thatAncillary Lender’s Ancillary Commitment and its intention to procure therepayment of the utilisations of any Ancillary Facility granted by thatAncillary Lender.

 

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

 

(c)                          Onthe last day of each Interest Period which ends after the Company has givennotice under paragraph (a) above (or, if earlier, the date specified bythe 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)                          Anynotice of cancellation or prepayment given by any Party under this Clause 11shall be irrevocable and, unless a contrary indication appears in thisAgreement, 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)                         Anyprepayment under this Agreement shall be made together with accrued interest onthe amount prepaid and, subject to any Break Costs, without premium or penalty.

 

(c)                          NoBorrower may reborrow any part of Facility A which is prepaid.

 

(d)                         Unlessa contrary indication appears in this Agreement, any part of Facility B whichis prepaid may be reborrowed in accordance with the terms of this Agreement.

 

(e)                          TheBorrowers shall not repay or prepay all or any part of the Utilisations orcancel all or any part of the Commitments except at the times and in the mannerexpressly provided for in this Agreement.

 

(f)                            Noamount of the Total Commitments cancelled under this Agreement may besubsequently reinstated.

 

(g)                         Ifthe Agent receives a notice under this Clause 11 it shall promptly forward acopy of that notice to either the Company or the affected Lender, asappropriate.

 

**18.15**             Clean Down

** **

TheCompany 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,

 

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

 

(b)                                  notify the 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**

** **

**COSTS OFUTILISATION**

** **

**19.**                         INTEREST

** **

**19.1**                   Calculationof interest

** **

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

 

(a)                                   Margin;

 

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

 

(c)                                   MandatoryCost, if any.

 

**19.2**                   Paymentof interest

** **

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

 

**19.3**                   Defaultinterest

** **

(a)                          Ifan Obligor fails to pay any amount payable by it under a Finance Document onits due date, interest shall accrue on the overdue amount from the due date upto the date of actual payment (both before and after judgment) at a rate which,subject to paragraph (b) below, is the sum of 1 per cent. and the ratewhich would have been payable if the overdue amount had, during the period ofnon-payment, constituted a Loan in the currency of the overdue amount forsuccessive Interest Periods, each of a duration selected by the Agent (actingreasonably).  Any interest accruing underthis Clause 12.3 shall be immediately payable by the Obligor on demand by theAgent.

 

(b)                         Ifany overdue amount consists of all or part of a Loan which became due on a daywhich was not the last day of an Interest Period relating to that Loan:

 

(i)                                     thefirst Interest Period for that overdue amount shall have a duration equal tothe unexpired portion of the current Interest Period relating to that Loan; and

 

(ii)                                  therate of interest applying to the overdue amount during that first InterestPeriod shall be the sum of 1 per cent. and the rate which would have applied ifthe overdue amount had not become due.

 

(c)                          Defaultinterest (if unpaid) arising on an overdue amount will be compounded with theoverdue amount at the end of each Interest Period applicable to that overdueamount but will remain immediately due and payable.

 

**19.4**                   Notificationof rates of interest

** **

The Agent shall promptly notify the Lenders andthe relevant Borrower of the determination of a rate of interest under thisAgreement.

 

**19.5**                   Adjustment of Margin

** **

(a)                          Subject to thisClause 12.5, the Margin applicable to each Utilisation shall be the rate perannum specified in the definition of Margin set out in Clause 1.1 (*Definitions*)**adjusted by reference to 

 

55

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the ratio of Net Debt to EBITDA as shownin the then most recent Compliance Certificate (and the financial statementswith which it is required by this Agreement to be delivered) received by theAgent, to equal the rate per annum specified opposite the relevant range setout in the following table in which the ratio of Net Debt to EBITDA falls:

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

 

(b)                         No adjustmentshall be made to the Margin under paragraph (a) above until receipt by theAgent of the first Compliance Certificate (and the financial statements withwhich it is required by this Agreement to be delivered) for the Relevant Periodending 31 December 2008.

 

(c)                          Any adjustment tothe Margin under paragraph (a) above shall take effect on the date (the “**Margin Adjustment Date**”) falling on thefirst day of the Interest Period commencing after receipt by the Agent of aCompliance Certificate (and the financial statements with which it is requiredby this Agreement to be delivered) in accordance with Clause 23.2 (*Compliance Certificate*).

 

(d)                         If the Margin fora Utilisation is reduced for any period under this Clause 12.5 but the annualaudited financial statements of the Group (and the Compliance Certificate withwhich they are required by this Agreement to be delivered) subsequentlyreceived by the Agent do not confirm the basis for that reduction, thatreduction shall be reversed with retrospective effect. In that event, theMargin for that Utilisation shall be the rate per annum specified opposite therelevant range set out in the table above of the revised ratio of Net Debt toEBITDA calculated using the figures in that Compliance Certificate. The Companyshall promptly pay to the Agent any amount necessary to put the Agent andLenders in the position they would have been in had the appropriate rate of theMargin applied during that period.

 

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(e)                          If the annualaudited financial statements of the Group (and the Compliance Certificate withwhich they are required by this Agreement to be delivered) subsequentlyreceived by the Agent show that the Margin for any Utilisation should have beenreduced for any period, the next payments of interest falling due on theUtilisations shall be reduced to the extent necessary to put the Obligors inthe position they would have been in if the Margin had been reduced for thatperiod.

 

(f)                            While an Event ofDefault is continuing, the Margin applicable to each Utilisation shall be therate of 3.00 per cent. per annum.

 

**20.**                         INTEREST PERIODS

** **

**20.1**                   Selectionof Interest Periods

** **

(a)                          ABorrower (or the Company on behalf of a Borrower) may select an Interest Periodfor a Loan in the Utilisation Request for that Loan or (if the Loan has alreadybeen borrowed) in a Selection Notice.

 

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

 

(c)                          Ifa Borrower (or the Company) fails to deliver a Selection Notice to the Agent inaccordance with paragraph (b) above, the relevant Interest Period will,subject to Clause 13.2 (*Changes to InterestPeriods*),  be one Month.

 

(d)                         Subjectto this Clause 13, a Borrower (or the Company) may select an Interest Period of1, 3 or 6 Months or any other period agreed between the Company and the Agent(acting on the instructions of all the Lenders participating in the relevantFacility). In addition a Borrower (or the Company on its behalf) may select anInterest Period of less than one Month (in relation to Facility A), ifnecessary to ensure that there are sufficient Facility A Loans (with anaggregate Base Currency Amount equal to or greater than the RepaymentInstalment) which have an Interest Period ending on a Facility A Repayment Datefor the Borrowers to make the Repayment Instalment due on that date.

 

(e)                          Priorto determining the interest rate for an Interest Period beginning before theSyndication Date, the Agent may shorten that Interest Period to a duration ofone Month (or such shorter duration as may be desirable) to ensure that theInterest Period ends on a date on which rights and obligations under thisAgreement are to be novated or assigned to persons becoming Parties as a resultof Syndication.

 

(f)                            AnInterest Period for a Loan shall not extend beyond the Termination Dateapplicable to its Facility.

 

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

 

(h)                         AFacility B Loan has one Interest Period only.

 

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** **

**20.2**                   Changesto Interest Periods

** **

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

 

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

 

**20.3**                   Non-BusinessDays

** **

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

 

**20.4**                   Consolidationand division of Facility A Loans

** **

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

 

(i)                                     relateto Facility A Loans in the same currency;

 

(ii)                                  endon the same date; and

 

(iii)                               aremade to the same Borrower,

 

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

 

(b)                         Subjectto Clause 4.4 (*Maximum number ofUtilisations*) and Clause 5.3 (*Currencyand amount*), if a Borrower (or the Company on its behalf) requestsin a Selection Notice that a Facility A Loan be divided into two or moreFacility A Loans, that Facility A Loan will, on the last day of its InterestPeriod, be so divided with Base Currency Amounts specified in that SelectionNotice, being an aggregate Base Currency Amount equal to the Base CurrencyAmount of the Facility A Loan immediately before its division.

 

**21.**                         CHANGES TO THE CALCULATION OF INTEREST

** **

**21.1**                   Absenceof quotations

** **

Subject to Clause 14.2 (*Marketdisruption*), if LIBOR or, if applicable, EURIBOR is to be determinedby reference to the Reference Banks but a Reference Bank does not supply aquotation by the Specified Time on the Quotation Day, the applicable LIBOR orEURIBOR shall be determined on the basis of the quotations of the remainingReference Banks.

 

**21.2**                   Marketdisruption

** **

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

 

(i)                                     theMargin;

 

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

 

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expresses asa percentage rate per annum the cost to that Lender of funding itsparticipation in that Loan from whatever source it may reasonably select; and

 

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

 

(b)                         Inthis Agreement “Market Disruption Event” means:

 

(i)                                     ator about noon on the Quotation Day for the relevant Interest Period the ScreenRate is not available and none or only one of the Reference Banks supplies arate to the Agent to determine LIBOR or, if applicable, EURIBOR for therelevant currency and Interest Period; or

 

(ii)                                  beforeclose of business in London on the Quotation Day for the relevant InterestPeriod, the Agent receives notifications from a Lender or Lenders (whoseparticipations in a Loan exceed 35 per cent. of that Loan) that the cost to itof obtaining matching deposits in the Relevant Interbank Market would be inexcess of LIBOR or, if applicable, EURIBOR.

 

**21.3**                   Alternativebasis of interest or funding

** **

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

 

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

 

**21.4**                   BreakCosts

** **

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

 

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

 

**22.**                         FEES

** **

**22.1**                   Commitmentfee

** **

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

 

(b)                         Theaccrued commitment fee is payable on the last day of each successive period ofthree Months which ends during the relevant Availability Period, on the lastday of the Availability Period and, if cancelled in full, on the cancelledamount of the relevant Lender’s Commitment at the time the cancellation iseffective.

 

**22.2**                   Arrangementfee

** **

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

 

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** **

**22.3**                   Agencyfee

** **

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

 

**22.4**                   SecurityAgency fee

** **

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

 

**22.5**                   IssuingBank 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

** **

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

 

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** **

**SECTION 6**

** **

**ADDITIONALPAYMENT OBLIGATIONS**

** **

**23.**                         TAX GROSS UP AND INDEMNITIES

** **

**23.1**                   Definitions

** **

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

 

(i)                                     residentin Finland for Finnish taxation purposes; or

 

(ii)                                  aLender not resident in Finland for Finnish taxation purposes yet entitled toreceive all interest payments under the Finance Documents without deduction orwithholding of any Finnish income tax pursuant to section 9(2) of theFinnish 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.

 

“**Qualifying Lender**”means :

 

(iii)                               inrespect of interest payable by a German Borrower, a Lender which isbeneficially entitled to interest payable to that Lender in respect of anadvance under a Finance Document and is:

 

(A)                          lendingthrough a Facility Office in Germany;

 

(B)                            aTreaty Lender with respect to the Federal Republic of Germany; or

 

(C)                            otherwiseentitled to receive interest payments from an Obligor without such Obligorbeing required to make (or as the case may be, being exempted from) anydeduction or withholding for or on account of Tax imposed by the FederalRepublic of Germany in respect of an advance under a Finance Document;

 

(iv)                              aFinnish Qualifying Lender; or

 

(v)                                 inrespect of any other Borrower, a Lender which is beneficially entitled tointerest payable to that Lender and is:

 

(A)                          lendingthrough a Facility Office in the jurisdiction of incorporation of the relevantBorrower; or

 

(B)                            aTreaty Lender with respect to the jurisdiction of incorporation of the relevantBorrower.

 

“**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 Partyunder Clause 16.2 (*Tax gross-up*)or a payment under Clause 16.3 (*Tax indemnity*).

 

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

 

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

 

(vii)                           doesnot carry on a business in the Federal Republic of Germany or the jurisdictionof incorporation of the relevant Borrower through a permanent establishmentwith which that Lender’s participation in the Loan is effectively connected.

 

“**Treaty State**”means a jurisdiction having a double taxation agreement (a “**Treaty**”) with the Federal Republic of Germany or 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)                         Unlessa contrary indication appears, in this Clause 16 a reference to “determines” or“determined” means a determination made in the absolute discretion of theperson making the determination.

 

**23.2**                     Taxgross-up

** **

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

 

(b)                         TheCompany shall promptly upon becoming aware that an Obligor must make a TaxDeduction (or that there is any change in the rate or the basis of a TaxDeduction) notify the Agent accordingly. Similarly, a Lender shall notify theAgent on becoming so aware in respect of a payment payable to that Lender. Ifthe Agent receives such notification from a Lender it shall notify the Companyand that Obligor.

 

(c)                          Ifa Tax Deduction is required by law to be made by an Obligor, the amount of thepayment due from that Obligor shall be increased to an amount which (aftermaking any Tax Deduction) leaves an amount equal to the payment which wouldhave been due if no Tax Deduction had been required.

 

(d)                         AnObligor is not required to make an increased payment to a Lender underparagraph (c) above for a Tax Deduction in respect of tax imposed by theFederal Republic of Germany or the jurisdiction of incorporation of therelevant Obligor from a payment of interest on a Loan, if on the date on whichthe payment falls due:

 

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

 

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

 

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

 

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(f)                            Withinthirty days of making either a Tax Deduction or any payment required inconnection with that Tax Deduction, the Obligor making that Tax Deduction shalldeliver to the Agent for the Finance Party entitled to the payment evidencereasonably satisfactory to that Finance Party that the Tax Deduction has beenmade or (as applicable) any appropriate payment paid to the relevant taxingauthority.

 

(g)                         ATreaty Lender and each Obligor which makes a payment to which that TreatyLender is entitled shall co-operate in completing any procedural formalitiesnecessary for that Obligor to obtain authorisation to make that payment withouta Tax Deduction.

 

**23.3**                   Taxindemnity

** **

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

 

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

 

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

 

(A)                          underthe law of the jurisdiction in which that Finance Party is incorporated or, ifdifferent, the jurisdiction (or jurisdictions) in which that Finance Party istreated as resident for tax purposes;

 

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

 

(C)                            underthe laws of Germany pursuant to section 49 paragraph 1 no. 5 lit. c) aa) GermanIncome Tax Code (*Einkommensteuergesetz*) due to thefact that a Facility is secured (directly or indirectly) by real estate locatedin Germany (*inländische Grundstücke*) or domesticrights treated as real property under German Civil Law (*inländischeRechte die den Vorschriften des Bürgerlichen Rechts über Grundstückeunterliegen*),

 

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

 

(ii)                                  tothe extent a loss, liability or cost:

 

(A)                          iscompensated for by an increased payment under Clause 16.2 (*Tax gross-up*); or

 

(B)                            wouldhave been compensated for by an increased payment under Clause 16.2 (*Tax gross-up*) but was not so compensatedsolely because one of the exclusions in paragraph (d) of Clause 16.2 (*Tax gross-up*) applied.

 

(c)                          AProtected Party making, or intending to make, a claim under paragraph (a) aboveshall promptly notify the Agent of the event which will give, or has given,rise to the claim, following which the Agent shall notify the Company.

 

(d)                         AProtected Party shall, on receiving a payment from an Obligor under this Clause16.3, notify the Agent.

 

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**23.4**                   TaxCredit

** **

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

 

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

 

(b)                                 thatFinance Party has (directly or on an affiliated group basis) obtained, utilisedand retained that Tax Credit,

 

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

 

**23.5**                   Stamptaxes

** **

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

 

**23.6**                   Valueadded tax

** **

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

 

(b)                           IfVAT is chargeable on any supply made by any Finance Party (the “**Supplier**”) to any other Finance Party (the “**Recipient**”) under a Finance Document, andany Party (the “**Relevant Party**”)is required by the terms of any Finance Document to pay an amount equal to theconsideration for such supply to the Supplier (rather than being required toreimburse the Recipient in respect of that consideration), such Party shallalso pay to the Supplier (in addition to and at the same time as paying suchamount) an amount equal to the amount of such VAT. The Recipient will promptlypay to the Relevant Party an amount equal to any credit or repayment from therelevant tax authority which it reasonably determines relates to the VATchargeable on that supply.

 

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

 

**23.7**                   GermanEarnings Stripping Rules

** **

Should a Borrower, which claims interest deductions inGermany for German Tax purposes with regard to interest payments under thisAgreement require the assistance by the Finance Parties on the basis of sec. 4fof 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 Federal Gazette, BGBI. I 2007, 1912 et seq.), withregard to the application of the equity escape clause, the Finance Partiesshall, upon receipt of a request of the relevant Borrower (containing adetailed proposal for the requested assistance) enter into good faithnegotiations as to what extent it is reasonably practical for the FinanceParties to assist the Borrower in this respect. For the avoidance of doubt, noFinance Party shall be obliged to release any Security, change this Agreementor disclose information which is confidential under applicable statutory orcontractual banking secrecy rules.

 

**24.**                         INCREASED COSTS

** **

**24.1**                   Increasedcosts

** **

(a)                          Subjectto Clause 17.3 (*Exceptions*) theCompany shall, within three Business Days of a demand by the Agent, pay for theaccount of a Finance Party the amount of any Increased Costs incurred by thatFinance Party or any of its Affiliates as a result of (i) the introductionof or any change in (or in the interpretation, administration or applicationof) any law or regulation or (ii) compliance with any law or regulationmade after the date of this Agreement.

 

(b)                         Inthis Agreement “**Increased Costs**”means:

 

(i)                                      areduction in the rate of return from the Facility or on a Finance Party’s (orits Affiliate’s) overall capital;

 

(ii)                                   anadditional or increased cost; or

 

(iii)                                areduction of any amount due and payable under any Finance Document,

 

which is incurred or suffered by a Finance Party or any ofits Affiliates to the extent that it is attributable to that Finance Partyhaving entered into its Commitment or funding or performing its obligationsunder any Finance Document.

 

**24.2**                   Increasedcost claims

** **

(a)                          AFinance Party intending to make a claim pursuant to Clause 17.1 (*Increased costs*), shall notify the Agentof the event giving rise to the claim, following which the Agent shall promptlynotify the Company.

 

(b)                         EachFinance Party shall, as soon as practicable after a demand by the Agent,provide a certificate confirming the amount of its Increased Costs.

 

**24.3**                   Exceptions

** **

(a)                          Clause17.1 (*Increased costs*) does notapply to the extent any Increased Cost is:

 

(i)                                     attributableto a Tax Deduction required by law to be made by an Obligor;

 

(ii)                                  compensatedfor by Clause 16.3 (*Tax indemnity*)(or would have been compensated for under Clause 16.3 (*Tax indemnity*) but was not so compensatedsolely because any of the exclusions in paragraph (b) of Clause 16.3 (*Tax indemnity*) applied); or

 

(iii)                               compensatedfor by the payment of the Mandatory Cost; or

 

(iv)                              attributableto the wilful breach by the relevant Finance Party or its Affiliates of any lawor regulation.

 

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(b)                         Inthis Clause 17.3, a reference to a “Tax Deduction” has the same meaning givento the term in Clause 16.1 (*Definitions*).

 

**25.**                         OTHER INDEMNITIES

** **

**25.1**                   Currencyindemnity

** **

(a)                          Ifany sum due from an Obligor under the Finance Documents (a “**Sum**”), or any order, judgment or awardgiven or made in relation to a Sum, has to be converted from the currency (the “**First Currency**”) in which that Sum ispayable into another currency (the “**SecondCurrency**”) for the purpose of:

 

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

 

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

 

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

 

(b)                         EachObligor waives any right it may have in any jurisdiction to pay any amountunder the Finance Documents in a currency or currency unit other than that inwhich it is expressed to be payable.

 

**25.2**                   Otherindemnities

** **

                                          TheCompany shall (or shall procure that an Obligor will), within three BusinessDays of demand, indemnify each Finance Party against any cost, loss orliability incurred by that Finance Party as a result of:

 

(a)                                   theoccurrence of any Event of Default;

 

(b)                                  afailure by an Obligor to pay any amount due under a Finance Document on its duedate, including without limitation, any cost, loss or liability arising as aresult of Clause 32 (*Sharing among theFinance Parties*);

 

(c)                                   funding,or making arrangements to fund, its participation in a Utilisation requested bya Borrower in a Utilisation Request but not made by reason of the operation ofany one or more of the provisions of this Agreement (other than by reason ofdefault or negligence by that Finance Party alone); or

 

(d)                                  aUtilisation (or part of a Utilisation) not being prepaid in accordance with anotice of prepayment given by a Borrower or the Company.

 

**25.3**                   Indemnityto the Agent and the Security Agent

** **

                                        TheCompany shall promptly indemnify the Agent and the Security Agent against anycost, loss or liability incurred by the Agent or the Security Agent (actingreasonably) as a result of:

 

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

 

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

 

**26.**                         MITIGATION BY THE LENDERS

** **

**26.1**                   Mitigation

** **

(a)                          EachFinance Party shall, in consultation with the Company, take all reasonablesteps to mitigate any circumstances which arise and which would result in anyamount becoming payable under or pursuant to, or cancelled pursuant to, any ofClause 11.1 (*Illegality**in relation to a Lender or the Issuing Bank*), Clause 11.2 (*Illegality in relation to an Ancillary Lender*), Clause 16 (*Tax gross-up and indemnities*) or Clause 17(*Increased costs*) including (butnot limited to) transferring its rights and obligations under the FinanceDocuments to another Affiliate or Facility Office.

 

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

 

**26.2**                   Limitationof liability

** **

(a)                          TheCompany shall indemnify each Finance Party for all costs and expensesreasonably incurred by that Finance Party as a result of steps taken by itunder Clause 19.1 (*Mitigation*).

 

(b)                         AFinance Party is not obliged to take any steps under Clause 19.1 (*Mitigation*) if, in the opinion of thatFinance Party (acting reasonably), to do so might be prejudicial to it.

 

**27.**                         COSTS AND EXPENSES

** **

**27.1**                   Transactionexpenses

** **

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

 

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

 

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

 

**27.2**                   Amendmentcosts

** **

If (a) an Obligor requests an amendment, waiver orconsent or (b) an amendment is required pursuant to Clause 33.9 (*Change of currency*), the Company shall,within three Business Days of demand, reimburse the Agent and the SecurityAgent 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**                   Enforcementcosts

** **

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

 

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**27.4**                   SecurityAgent expenses

** **

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

 

**27.5**                   Undertakingto pay

** **

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

 

(i)                                      any FinanceDocument;

 

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

 

(iii)                                the use ofproceeds of any Loan; or

 

(iv)                               the use of anyLetter of Credit or Bank Guarantee,

 

exceptto the extent such liability, damages, loss, cost or expense incurred orawarded results from any breach by a Finance Party of a Finance Document whichis finally judicially determined to have resulted directly from the grossnegligence or wilful misconduct of that Relevant Party.

 

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

 

(c)                            No Finance Partyshall have any duty or obligation, whether as fiduciary for any Relevant Partyor otherwise, to recover any payment made or required to be made underparagraph (a).

 

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

 

(e)                            Notwithstandingparagraph (d) above, no Relevant Party shall be responsible or have anyliability to the Company or any of its Affiliates or anyone else forconsequential losses or damages.

 

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** **

**SECTION 7**

** **

**guarantee**

** **

**28.**                         GUARANTEE AND INDEMNITY

** **

**28.1**                   Guaranteeand indemnity

** **

Each Guarantor irrevocably and unconditionally jointly andseverally:

 

(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 21 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 21 if the amount claimed had been recoverable onthe basis of a guarantee.

 

**28.2**                   Continuingguarantee

** **

This guarantee is a continuing guarantee and will extend tothe ultimate balance of sums payable by any Obligor under the FinanceDocuments, regardless of any intermediate payment or discharge in whole or inpart.

 

**28.3**                   Reinstatement

** **

If as a result of insolvency or any similar event:

 

(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**                     Waiverof defences

** **

The obligations of each Guarantor under this Clause 21 willnot be affected by an act, omission, matter or thing which, but for thisClause, would reduce, release or prejudice any of its obligations under thisClause 21 (without limitation and whether or not known to it or any FinanceParty) 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 of firstrequiring any Finance Party (or any trustee or agent on its behalf) to proceedagainst or enforce any other rights or security or claim payment from anyperson before claiming from that Guarantor under this Clause 21.  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 become payable by theObligors under or in connection with the Finance Documents have beenirrevocably paid in full, each Finance Party (or any trustee or agent on itsbehalf) 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) inrespect of those amounts, or apply and enforce the same in such manner andorder as it sees fit (whether against those amounts or otherwise) and noGuarantor shall be entitled 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 21.

 

**28.7**                   Deferralof Guarantors’ rights

** **

Until all amounts which may be or become payable by theObligors under or in connection with the Finance Documents have beenirrevocably 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 or distributionin relation to such rights it shall hold that benefit, payment or distributionto the extent necessary to enable all amounts which may be or become payable tothe Finance Parties by the Obligors under or in connection with the FinanceDocuments to be repaid in full on trust for the Finance Parties and shallpromptly pay or transfer the same to the Agent or as the Agent may direct forapplication in accordance with Clause 33 (*Paymentmechanics*) of this Agreement.

 

**28.8**                   Additionalsecurity

** **

This guarantee is in addition to and is not in any wayprejudiced by any other guarantee or security now or subsequently held by anyFinance 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 taken pursuantto, or in connection with, any Finance Document where such rights or securityare 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 21 (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 are required for theobligatory preservation of its stated share capital according to §§ 30, 31German 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 therespective German Guarantor have confirmed in writing to the Agent within15 calendar days following the Agent’s demand under the Guarantee, to whatextent the demanded payment fulfils the conditions pursuant to paragraph (a) andwould cause its Net Assets to fall below its stated share capital (*Stammkapital*) or, if the Net Assets arealready less than the stated share capital (*Stammkapital*),would cause such amount to be further reduced (the “**Management Determination**”).

 

(iv)                              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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itself andthe 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 the amount of theavailable Net Assets is higher than set out in the Management Determination therelevant German Guarantor shall pay such amount to the Finance Parties within5 Business Days after receipt of the Auditor’s Determination.

 

(vi)                               Ifthe German Guarantor intends to demonstrate that the enforcement of theGuarantee has led to one of the effects referred to in sub-paragraph (i) above,then the German Guarantor shall realise at market value any and all of itsassets that are shown in its balance sheet with a book value (*Buchwert*) which are (in the reasonableopinion of the Agent) significantly lower than their market value and to theextent that such assets are not necessary for the relevant German Guarantor’sbusiness (*nicht betriebsnotwendig*),to the extent necessary to satisfy the amounts demanded under thisparagraph Guarantee.

 

(vii)                           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)                        Ifthe German Guarantor demonstrates that, at the time of enforcement, it isobliged to file for the commencement of insolvency proceedings for reason ofover-indebtedness (*Überschuldung*),then for the determination of its Net Assets the lower of the amount of netassets shown by a regular balance sheet (*Handelsbilanz*)and by a balance sheet showing an over-indebtedness (*Überschuldungsstatus*)shall be relevant. In the 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 21.10 (*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 in Finlandunder this Clause 21 shall extend to guarantee the obligations of any Borrowerto 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 and warranties setout in this Clause 22 to each Finance Party on the date of this Agreement.

 

**29.1**                   Status

** **

(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)                                   anylaw or regulation applicable to it;

 

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

 

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

 

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

 

**29.4**                   Powerand authority

** **

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

 

**29.5**                   Validityand admissibility in evidence

** **

                                        AllAuthorisations required:

 

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

 

(b)                                  tomake the Finance Documents to which it is a party admissible in evidence in itsjurisdiction of incorporation; and

 

(c)                                   subjectto the Perfection Requirements, to enable it to create the Security to becreated by it pursuant to any Security Document and to ensure that suchSecurity has the priority and ranking it is expressed to have,

 

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have been obtained or effected and are in full force andeffect or will be obtained or effected and will be in full force and effect nolater 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 not required to makeany deduction for or on account of Tax from any payment it may make under anyFinance Document.

 

**29.8**                     Nofiling or stamp taxes

** **

Under the law of its jurisdiction of incorporation it is notnecessary that the Finance Documents be filed, recorded or enrolled with anycourt or other authority in that jurisdiction or that any stamp, registrationor similar tax be paid on or in relation to the Finance Documents or thetransactions 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 subjectwhich has 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 purposesof the Information Memorandum was true and accurate in all material respects asat the date 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 ofreasonable assumptions.

 

(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 Finance Documents rank at least paripassu with the claims of all its other unsecured and unsubordinated creditors,except for obligations mandatorily preferred by law applying to companiesgenerally.

 

**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)                                   compliedwith all Environmental Laws to which it may be subject;

 

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

 

(c)                                   compliedwith the terms of those Environmental Licences,

 

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

 

**29.15**               Environmentalreleases

** **

                                          No:

 

(a)                                   propertycurrently or previously owned, leased, occupied or controlled by it or any ofits Subsidiaries (including any offsite waste management or disposal locationutilised by it or any of its Subsidiaries) is contaminated with any HazardousSubstance; and

 

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

 

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

 

**29.16**               Solvency

** **

No:

 

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

 

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

 

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

 

**29.17**               Security

** **

(a)                            Subject to anyapplicable Perfection Requirements, each Security Document creates (or, onceentered into, will create) in favour of the Security Agent for the benefit ofthe Finance Parties, the Security which it is expressed to create fullyperfected and with the ranking and priority it is expressed to have.

 

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(b)                           The constitutionaldocuments of any member of the Group and the JV Documents do not restrict orinhibit in any manner any transfer of any shares of any member of the Groupwhich are expressed to be subject to any Security under any Security Documentexcept for the articles of association of Sachtleben Chemie from whichrestrictions will be removed in accordance with the terms of the pledgeagreement relating to the shares of Sachtleben Chemie.

 

**29.18**             Legal and beneficial ownership

** **

(a)                            It and each of itsSubsidiaries is the absolute legal and beneficial owner of all the assets overwhich it purports to create Security pursuant to any Security Document, freefrom any Security other than Permitted Security.

 

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

 

**29.19**             Assets

** **

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

 

**29.20**             JVDocuments

** **

(a)                          The JV Documents:

 

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

 

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

 

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

 

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

 

**29.21**             Pensions

** **

(a)                          No member of theGroup has any material liability in respect of any pension scheme and there areno circumstances which would give rise to such a liability other than asdisclosed in the Information Memorandum or otherwise to the Agent prior to thedate of this Agreement.

 

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

 

**29.22**             Insurances

** **

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

 

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

 

**29.23**            Repetition

** **

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

 

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

 

(b)                                  inthe case of an Additional Obligor, the day on which the company becomes (or itis proposed that the company becomes) an Additional Obligor.

 

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

 

**30.**                        INFORMATION UNDERTAKINGS

** **

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

 

**30.1**                  Financialstatements

** **

The Company shall supply to the Agent in sufficient copiesfor 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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Subsidiaries and(in reasonable detail) computations for the determination of which members ofthe 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)                           TheCompany shall procure that each set of financial statements delivered pursuantto Clause 30.1 (*Financial statements*)is prepared using the Applicable Accounting Principles, unless, inrelation to any set of financial statements, it notifies the Agent that therehas been a change in GAAP or the relevant accounting practices or referenceperiods and its auditors (or, if appropriate, the auditors of the Obligor)deliver to the Agent:

 

(i)                                     a description ofany change necessary for the relevant financial statements to reflect theApplicable Accounting Principles; and

 

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

 

Anyreference in this Agreement to those financial statements shall be construed asa reference to those financial statements as adjusted to reflect the ApplicableAccounting Principles.

 

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

 

**30.4**                  Information:miscellaneous

** **

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

 

(a)                                  alldocuments dispatched by the Company to its creditors generally at the same timeas they are dispatched;

 

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

 

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(c)                                   promptly,such further information regarding the financial condition, business andoperations of any member of the Group as any Finance 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 the case ofparagraph (iii) above, any prospective new Lender) to comply with “knowyour customer” or similar identification procedures in circumstances where thenecessary information is not already available to it, each Obligor shallpromptly upon the request of the Agent or any Lender supply, or procure the supplyof, such documentation and other evidence as is reasonably requested by theAgent (for itself or on behalf of any Lender) or any Lender (for itself or, inthe case of the event described in paragraph (iii) above, on behalf of anyprospective new Lender) in order for the Agent, such Lender or, in the case ofthe event described in paragraph (iii) above, any prospective new Lenderto carry out and be satisfied it has complied with all necessary “know yourcustomer” or other similar checks under all applicable laws and regulationspursuant to the transactions contemplated in the Finance Documents.

 

(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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available toit, 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.**                        FINANCIAL COVENANTS

** **

**31.1**                  Financialcondition

** **

The Company shall ensure that:

 

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

 

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

 

(c)                                  theratio of Cash Generated for Financing to Debt Service for each Relevant Periodending on a Quarter Date in each period set out in the table below will not beless than the ratio set out in the relevant column in the table below oppositethat 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 of expenditurewhich, in accordance with the Accounting Principles, is treated as capital

 

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

 

“**Cash Generated forFinancing**” means, in respect of any Relevant Period (the “**Current Relevant Period**”), EBITDA for 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 andPermitted Joint Ventures 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 (or deducted) more thanonce and there shall be excluded the effect of all cash movements associatedwith 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:

 

(h)                                  receivablesin relation to Tax;

 

(i)                                      ExceptionalItems and other non-operating items;

 

(j)                                      insuranceclaims; and

 

(k)                                   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:

 

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

 

(m)                                liabilitiesfor Tax;

 

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

 

(o)                                  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:

 

(p)                                 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);

 

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

 

(r)                                    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:

 

(s)                                   InterestExpenses for that Relevant Period;

 

(t)                                     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

 

(u)                                  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 more than once.

 

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

 

(v)                                 **before deducting** any Net Interest Expenses andother finance charges in respect of Financial Indebtedness;

 

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

 

(x)                                   **before taking**into account any Exceptional Items (and after adding the amount of any profitwhich would have been generated by Kemira Pigments in that Relevant Period butfor the strikes that occurred in that Relevant Period, in each case as referredto in the KPMG Supplementary Report);

 

(y)                                 **before deducting** JV Costs up to an amount notexceeding €8,000,000 (for the avoidance of doubt, JV Costs exceeding €8,000,000shall be deducted to the extent otherwise required to be deducted pursuant tothe terms of this Agreement);

 

(z)                                   **after deducting** the amount of any profit (oradding back the amount of any loss) of any member of the Group which isattributable to minority interests;

 

(aa)                            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);

 

(bb)                          **before taking into account** any unrealised gains orlosses on any derivative instrument;

 

(cc)                            **before taking into account** any gain or loss on thedisposal or revaluation of assets (other than in the ordinary course oftrading);

 

(dd)                          beforetaking into account any Pension Items;

 

(ee)                            **after adding back** any amount attributable tothe amortisation, depreciation or impairment of assets of members of the Group(and taking no account of the reversal of any previous impairment charge madein that Relevant Period); and

 

(ff)                                **after adding back**, to the extent deducted, anynon-recurring fees, expenses or charges paid in relation to (A) anyrestructuring, provided that it has a future identifiable benefit 

 

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for the operationof the Group (as approved by the Agent in consultation with the Lenders) andthe amount added back does not exceed €10,000,000 in any financial year of theCompany 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 or taken intoaccount, as the case may be, for the purposes of determining operating profitsof 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:

 

(gg)                          **including** any upfront fees or costswhich are not capitalised;

 

(hh)                          **including**the interest (but not thecapital) element of payments in respect of Finance Leases;

 

(ii)                                 **including** any commission, fees,discounts and other finance payments payable by (and deducting any such amountspayable to) any member of the Group under any interest rate hedgingarrangement;

 

(jj)                                 **including** the amortisation of anycapitalised finance payments; and

 

(kk)                           takingno account of any unrealised gains or losses on any derivative instruments,

 

and so that no amount shall be added (or deducted) more thanonce.

 

“**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:

 

(ll)                                  **excluding**any such obligations to anyother member of the Group;

 

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

 

(nn)                          **deducting** the aggregate amount of Cashand Cash Equivalent Investments held by any member of the Group at that time,

 

and so that no amount shall be included or excluded morethan 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, Net InterestExpenses, Net Debt and Working Capital shall be calculated and interpreted on aconsolidated basis in accordance with the Applicable Accounting Principles,unless expressly provided to the contrary, and shall be expressed in euro.

 

(b)                                  CapitalExpenditure, Cash Generated for Financing, EBITDA, Interest Expenses, Net InterestExpenses, Net Debt and Working Capital shall be determined (except as needed toreflect the terms of this Clause 31) from the financial statements of the Groupand Compliance Certificates delivered under Clause 30.1 (*Financialstatements*), and Clause 30.2 (*Compliance Certificate*).

 

(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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during thatRelevant 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.**                         GENERAL UNDERTAKINGS

** **

The undertakings in this Clause 32 remain in force from thedate of this Agreement for so long as any amount is outstanding under theFinance 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 or regulation ofits jurisdiction of incorporation to enable it to perform its obligations underthe Finance Documents and to ensure, subject to the Legal Reservations, thelegality, validity, enforceability or admissibility in evidence in its jurisdictionof incorporation of any Finance Document.

 

**32.2**                   Compliancewith laws

** **

Each Obligor shall comply in all respects with all laws towhich it is subject, if failure so to comply would be reasonably expected tohave 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 ensure that no othermember of the Group will) enter into any amalgamation, demerger, merger orcorporate reconstruction without the prior written consent of the MajorityLenders other than a Permitted Transaction.

 

**32.6**                   Changeof business

** **

The Company shall procure that no substantial change is madeto the general nature of the business of the Group taken as a whole from thatcarried on at the date of this Agreement.

 

**32.7**                   Insurance

** **

Each Obligor shall (and the Company shall ensure that eachother member of the Group will) maintain insurances on and in relation to itsbusiness and assets with reputable underwriters or insurance companies againstthose risks, and to the extent, usually insured against by prudent companieslocated in the same or a similar location and carrying on a similar business.

 

**32.8**                   Environmentalundertakings

** **

Each Obligor shall (and the Company shall ensure that eachother member of the Group will):

 

(a)                                   complywith all Environmental Laws to which it is subject;

 

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

 

(c)                                   complywith the terms of all those Environmental Licences,

 

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

 

**32.9**                   Environmentalclaims

** **

Each Obligor shall (and the Company shall ensure that eachother member of the Group will) promptly notify the Agent of any claim, noticeor other communication received by it in respect of any actual or allegedbreach of or liability under Environmental Law which, if substantiated, has oris reasonably likely to have a Material Adverse Effect.

 

**32.10**             Assets

** **

EachObligor shall (and the Company shall ensure that each other member of the Groupwill) maintain in good working order and condition (ordinary wear and tearexcepted) all its assets necessary for the conduct of its business as conductedfrom time to time.

 

**32.11**             Pari passu

** **

EachObligor shall ensure that its obligations under the Finance Documents rank atall times at least *pari passu* inright of priority and payment with the claims of all its other unsecured andunsubordinated creditors, except for obligations mandatorily preferred by lawapplying to companies generally.

 

**32.12**             Loans or credit

** **

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

 

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

** **

**32.13**             Guarantees

** **

(a)                            No Obligor shall(and the Company shall ensure that no other member of the Group will) issue orallow to remain outstanding any guarantee in respect of any liability orobligation of any person.

 

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(b)                           Paragraph (a) abovedoes not apply to a Permitted Guarantee.

 

**32.14**             FinancialIndebtedness

** **

(a)                            No Obligor shall(and the Company shall ensure that no other member of the Group will) incur (oragree to incur) or allow to remain outstanding any Financial Indebtedness.

 

(b)                           Paragraph (a) abovedoes not apply to Financial Indebtedness that is Permitted FinancialIndebtedness or a Permitted Transaction.

 

**32.15**             Restrictedpayments

** **

TheCompany shall not:

 

(i)                                     declare, pay ormake any dividend or other payment or distribution of any kind on or in respectof any of its shares; or

 

(ii)                                  reduce, return,purchase, repay, cancel or redeem any of its shares,

 

providedthat the Company may take such action at any time when the ratio of Net Debt onthe most recent Quarter Date to EBITDA for the Relevant Period ending on thatQuarter Date is less than or equal to 2.50:1.00 and that immediately after anysuch action is taken, such ratio will be less than or equal to 2.50:1.00.

 

**32.16**             Acquisitions

** **

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

 

(i)                                     acquire any sharein, or any security issued by, any person, or any interest therein (or agree todo any of the foregoing); or

 

(ii)                                  acquire anybusiness or going concern, or the whole or substantially the whole of theassets or business of any person, or any assets that constitute a division oroperating unit of the business of any person (or agree to do any of theforegoing).

 

(b)                           Paragraph (a) abovedoes not apply to any acquisition or investment which is a PermittedAcquisition or a Permitted Transaction.

 

**32.17**             Arm’slength terms

** **

(a)                            No Obligor shall(and the Company shall ensure that no other member of the Group will) enterinto any contract or arrangement with or for the benefit of any other personwhich is not a member of the Group (including any disposal to that person)other than in the ordinary course of business and on arm’s length terms orbetter.

 

(b)                           Paragraph (a) abovedoes not apply to:

 

(i)                                      any JV Costs up toan aggregate amount of €8,000,000; and

 

(ii)                                   a PermittedTransaction.

 

(c)                            The Company shallensure that no member of the Group which is not an Obligor shall enter into anycontract or arrangement regarding a sale, lease, transfer or other disposal ora loan, credit or other arrangement having a similar effect with or for thebenefit of any Obligor on terms less advantageous to that Obligor than arm’slength terms.

 

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**32.18**             Hedging

** **

(a)                            The Company shallensure that the hedging required by the Hedging Letter is effected within 90days after the date of first utilisation of any Facility (and is maintained ineffect) in accordance with the terms of the Hedging Letter.

 

(b)                           No Obligor shall(and the Company shall ensure that no other member of the Group will) enter (oragree to enter) into any derivative transaction.

 

(c)                            Paragraph (b) abovedoes not apply to any derivative transaction which is a Permitted HedgingTransaction.

 

**32.19**             Pensions

** **

TheCompany shall ensure that all pension schemes maintained or operated by, or forthe benefit of, any member of the Group and/or any of its employees:

 

(i)                                     are maintained andoperated in all material respects in accordance with all applicable laws andcontracts and their governing provisions; and

 

(ii)                                   are fundedsubstantially in accordance with the governing provisions of the scheme withany funding shortfall advised by actuaries of recognised standing beingrectified in accordance with those governing provisions.

 

**32.20**             Taxes

** **

(a)                            Each Obligor shall(and the Company shall ensure that each other member of the Group will) pay allmaterial Taxes required to be paid by it within the time period allowed forpayment without incurring any material penalties for non-payment.

 

(b)                           Paragraph (a) abovedoes not apply to any Taxes:

 

(i)                                     being contested bythe relevant member of the Group in good faith and in accordance with therelevant procedures;

 

(ii)                                  for which adequatereserves are being maintained in accordance with, and to the extent requiredby, GAAP; and

 

(iii)                               where payment canbe lawfully withheld and will not result in the imposition of any penalty norin any Security ranking in priority to the claims of any Finance Party underany Finance Document or to any Security created under any Security Document.

 

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

 

**32.21**             JointVentures

** **

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

 

(i)                                     invest in oracquire (or agree to invest in or acquire) any share in, or any security issuedby, any Joint Venture or any interest therein; or

 

(ii)                                  transfer anyassets, or lend, to or give a guarantee, Security or Quasi Security for, orotherwise underwrite, the obligations of, or incur any other liability (whetheractual or contingent and whether present or future) in respect of, a JointVenture (or agree to do any of the foregoing).

 

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(b)                           Paragraph (a) abovedoes not apply to any acquisition of or investment in, or transfer or loan to,or guarantee, Security or Quasi Security for the obligations of, or any otherliability in respect of, the Ti02 Joint Venture or a Permitted Joint Venture.

 

**32.22**             Guaranteesand Security

** **

(a)                            The Company shall:

 

(i)                                     within 30 days ofa member of the Group becoming a Material Subsidiary, ensure that the relevantmember of the Group becomes an Additional Guarantor in accordance withClause 35 (*Changes to the Obligors*).

 

(b)                           The Company needonly perform its obligations under paragraph (a) above if it is notunlawful for the relevant person to become a Guarantor and that person becominga Guarantor would not result in personal liability for that person’s directorsor other management. Each Obligor must use, and must procure that the relevant personuses, all reasonable endeavours lawfully available to avoid any suchunlawfulness or personal liability. This includes agreeing to a limit on theamount guaranteed. The Agent may (but shall not be obliged to) agree to such alimit if, in its opinion, to do so would avoid the relevant unlawfulness orpersonal liability.

 

(c)                            Each Obligor shall(and the Company shall ensure that each other member of the Group will), at itsown expense, promptly take all such action as the Agent or the Security Agentmay require:

 

(i)                                     for the purpose ofperfecting or protecting any of the Finance Parties’ rights under, andpreserving the Security intended to be created or evidenced by, any of theFinance Documents; and

 

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

 

includingthe execution of any transfer, conveyance, assignment or assurance of any assetand the giving of any notice, order or direction and the making of anyregistration which the Agent or the Security Agent may reasonably require.

 

(d)                           The Company shallensure that at all times:

 

(i)                                     the aggregate ofthe unconsolidated net assets (excluding any intragroup loans) of theGuarantors (without double counting and excluding any interests in anySubsidiaries which are Guarantors) exceeds 80 per cent. of the consolidated netassets of the Group; and

 

(ii)                                  the aggregate ofthe unconsolidated revenues or EBITDA of the Guarantors (without doublecounting and excluding any dividends or other distributions from Subsidiarieswhich are Guarantors) exceeds 80 per cent. of the consolidated revenues orEBITDA of the Group,

 

ineach case calculated by reference to the then most recent annual and quarterlyunaudited unconsolidated financial statements of each Guarantor and the thenmost recent annual and quarterly audited consolidated financial statements ofthe Group.

** **

**32.23**             Issue of shares

** **

(a)                            No Obligor (otherthan the Company) shall (and the Company shall ensure that no other member ofthe Group will):

 

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(i)                                     issue any share toany person; or

 

(ii)                                  grant to anyperson any conditional or unconditional option, warrant or other right to callfor the issue or allotment of, subscribe for, purchase or otherwise acquire anyshare of any member of the Group (including any right of pre-emption,conversion or exchange), or alter any right attaching to any share capital ofany member of the Group.

 

(b)                           Paragraph (a) abovedoes not apply to:

 

(i)                                     any issue ofshares by a member of the Group to its immediate holding company; and

 

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

 

**32.24**             Condition subsequent

** **

Within 20 Business Days of request by the Security Agent (orsuch longer period as the Company and the Security Agent (in its solediscretion) may agree), the Company shall enter into a Transfer of Titlefor Security Agreement and/or an Agreement on the Security Assignment ofIntellectual Property Rights (on terms substantially the same as the terms ofthe existing Security Documents), if the Security Agent considers it necessaryto do so to protect the legitimate interests of the Finance Parties (takinginto account (i) the value of the assets subject to security under the existingSecurity Documents as a whole and (ii) the proportion of the costsassociated with the taking and perfection of the additional security to thevalue of the assets proposed to be subject to the additional security requestedby the Security Agent).

 

**33.**                         EVENTS OF DEFAULT

** **

Each of the events or circumstances set out in Clause 33 isan Event of Default (save for Clause 33.16 (*Acceleration*).

 

**33.1**                   Non-payment

** **

An Obligor does not pay on the due date any amount payablepursuant to a Finance Document at the place at and in the currency in which itis 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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Days of theearlier of the Agent giving notice to the Company or the Company becoming awareof the failure to comply.

 

**33.4**                   Misrepresentation

** **

Any representation or statement made or deemed to be made byan Obligor in the Finance Documents or any other document delivered by or onbehalf of any Obligor under or in connection with any Finance Document is orproves to have been incorrect or misleading in any material respect when madeor deemed to be made unless the facts or circumstances underlying themisrepresentation are capable of remedy and are remedied within the earlier of20 Business Days of the Agent giving notice to the Company and the Companybecoming 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 have occurred underthis Clause 33.7 in respect of (A) an amalgamation, demerger, merger,consolidation or corporate reconstruction on a solvent basis of a member of theGroup which is not an Obligor, or (B) any winding-up petition which isfrivolous or vexatious and is discharged, stayed or dismissed within 14 days ofcommencement 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)                                   aninsolvency includes 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 orexecution or any analogous process in any jurisdiction affects any asset orassets of a member of the Group and is not discharged within 5 Business Days.

 

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**33.9**                   Ownershipof the Obligors

** **

An Obligor (other than the Company) is not or ceases to be aSubsidiary of the Company.

 

**33.10**             Unlawfulness

** **

It is or becomes unlawful for an Obligor to perform any ofits obligations under the Finance Documents.

 

**33.11**             Repudiation

** **

An Obligor repudiates a Finance Document or evidences anintention to repudiate a Finance Document.

 

**33.12**             Securityand guarantees

** **

AnySecurity Document or any guarantee in, or any subordination under, any FinanceDocument is not in full force and effect or any Security Document does notcreate in favour of the Security Agent for the benefit of the Finance Parties,the Security which it is expressed to create fully perfected and with theranking and priority it is expressed to have in a manner and to an extent whichis or is reasonably likely to be materially adverse to the interests of theLenders under the Finance Documents.

 

**33.13**             Materialadverse change

** **

The Majority Lenders (acting reasonably) determine that aMaterial Adverse Effect exists, has occurred or might reasonably be expected tooccur.

 

**33.14**             Litigation

** **

(a)                            Any litigation,arbitration, proceeding or dispute is started or threatened or there are anycircumstances likely to give rise to any litigation, arbitration, proceeding ordispute, in each case which, if adversely determined, might reasonably be expectedto have a Material Adverse Effect.

 

(b)                           Paragraph (a) shallnot apply to any litigation, arbitration or administrative proceedings whichare vexatious or frivolous.

 

**33.15**             Cessationof business

** **

AnyObligor suspends or ceases (or threatens to suspend or cease) to carry on allor a material part of its business except as part of a Permitted Merger,Permitted Transaction or a Permitted Disposal.

 

**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 afterbeing notified by the Agent of the Acceleration Date, each Ancillary Lendershall by notice to the Company:

 

(i)                                     cancel itsAncillary Commitment whereupon it shall immediately be cancelled;

 

(ii)                                 declare that allor the corresponding part of the utilisations under any Ancillary Facilityprovided by that Ancillary Lender, together with accrued interest, full cashcover in respect of all or the corresponding part of the contingent liabilitiesof that Ancillary Lender under that Ancillary Facility, and all or thecorresponding part of all other amounts accrued or outstanding in respect ofthat Ancillary Facility be immediately due and payable, whereupon they shallbecome immediately due and payable; and/or

 

(iii)                              declare that allor the corresponding part of the utilisations under any Ancillary Facilityprovided by that Ancillary Lender, together with accrued interest, full cashcover in respect of all or the corresponding part of the contingent liabilitiesof that Ancillary Lender under that Ancillary Facility, and all or thecorresponding part of all other amounts accrued or outstanding in respect ofthat Ancillary Facility be payable upon demand, whereupon they shallimmediately become payable on demand by that Ancillary Lender (on theinstructions of the Agent, if so directed by the Majority Lenders).

 

(c)                            No AncillaryLender may cancel the whole or any part of its Ancillary Commitment, declarethat all or part of the utilisations under an Ancillary Facility provided bythat Ancillary Lender be immediately due and payable or require the payment ofcash cover in respect of all or any part of any contingent liabilities of thatAncillary Lender under an Ancillary Facility unless the Agent has delivered anotice to the Company pursuant to sub-paragraph (ii) of paragraph (a) ofthis Clause 26.16.

 

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**SECTION 9**

** **

**CHANGES TOPARTIES**

** **

**34.**                         CHANGES TO THE LENDERS

** **

**34.1**                   Assignmentsand transfers by the Lenders

** **

Subject to this Clause 34, a Lender (the “**Existing****Lender**”)may:

 

(a)                                   assignany of its rights; or

 

(b)                                  transferby novation any of its rights and obligations,

 

to another bank or financial institution or to a trust, fundor other entity which is regularly engaged in or established for the purpose ofmaking, purchasing or investing in loans, securities or other financial assets(the “**New Lender**”).

 

**34.2**                   Conditionsof assignment or transfer

** **

(a)                            Theconsent of the Company is required for an assignment or transfer by an ExistingLender, unless the assignment or transfer is (i) prior to the SyndicationDate, provided the New Lender is on the list of potential syndicate membersagreed by the Company and the Agent, (ii) to another Existing Lender or anAffiliate of a Existing Lender or (iii) made while an Event of Default iscontinuing.

 

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

 

(c)                            Theconsent of the Company to an assignment or transfer must not be withheld solelybecause the assignment or transfer may result in an increase to the MandatoryCost.

 

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

 

(e)                            Anassignment will only be effective on:

 

(i)                                     receiptby the Agent of written confirmation from the New Lender (in form and substancesatisfactory to the Agent) that the New Lender will assume the same obligationsto the other Finance Parties as it would have been under if it was an OriginalLender; and

 

(ii)                                  performanceby the Agent of all necessary “know your customer” or other similar checksunder all applicable laws and regulations in relation to such assignment to aNew Lender, the completion of which the Agent shall promptly notify to theExisting Lender and the New Lender.

 

(f)                              Atransfer will only be effective if the procedure set out in Clause 34.5 (*Procedure for transfer*) is complied with.

 

(g)                           Anyassignment or transfer by an Existing Lender to a New Lender shall only beeffective if it transfers or assigns the Existing Lender’s share of eachFacility pro rata.

 

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(h)                           If:

 

(i)                                     aLender assigns or transfers any of its rights or obligations under the FinanceDocuments or changes its Facility Office; and

 

(ii)                                  asa result of circumstances existing at the date the assignment, transfer orchange occurs, an Obligor would be obliged to make a payment to the New Lenderor Lender acting through its new Facility Office under Clause 23 (*Tax gross-up and indemnities*) or Clause 24(*Increased Costs*),

 

then the New Lender or Lender acting through its newFacility Office is only entitled to receive payment under those Clauses to thesame 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 an assignmentor transfer takes effect, pay to the Agent (for its own account) a fee of €2,000.

 

**34.4**                   Limitationof responsibility of Existing Lenders

** **

(a)                            Unlessexpressly agreed to the contrary, an Existing Lender makes no representation orwarranty and assumes no responsibility to a New Lender for:

 

(i)                                     thelegality, validity, effectiveness, adequacy or enforceability of the FinanceDocuments or any other documents;

 

(ii)                                  thefinancial condition of any Obligor;

 

(iii)                               theperformance and observance by any Obligor of its obligations under the FinanceDocuments or any other documents; or

 

(iv)                              theaccuracy of any statements (whether written or oral) made in or in connectionwith any Finance Document or any other document,

 

and any representations or warranties implied by law areexcluded.

 

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

 

(i)                                     hasmade (and shall continue to make) its own independent investigation andassessment 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)                                 willcontinue to make its own independent appraisal of the creditworthiness of eachObligor and its related entities whilst any amount is or may be outstandingunder the Finance Documents or any Commitment is in force.

 

(c)                            Nothingin any Finance Document obliges an Existing Lender to:

 

(i)                                     accepta re-transfer from a New Lender of any of the rights and obligations assignedor transferred under this Clause 34; or

 

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(ii)                                  supportany losses directly or indirectly incurred by the New Lender by reason of thenon-performance by any Obligor of its obligations under the Finance Documentsor otherwise.

 

**34.5**                   Procedurefor transfer

** **

(a)                            Subjectto the conditions set out in Clause 34.2 (*Conditionsof assignment or transfer*) a transfer is effected in accordance withparagraph (c) below when the Agent executes an otherwise duly completedTransfer Certificate delivered to it by the Existing Lender and the NewLender.  The Agent shall, subject toparagraph (b) below, as soon as reasonably practicable after receipt by itof a duly completed Transfer Certificate appearing on its face to comply withthe terms of this Agreement and delivered in accordance with the terms of thisAgreement, execute that Transfer Certificate.

 

(b)                           TheAgent shall only be obliged to execute a Transfer Certificate delivered to itby the Existing Lender and the New Lender once it is satisfied it has compliedwith all necessary “know your customer” or other similar checks under allapplicable laws and regulations in relation to the transfer to such New Lender.

 

(c)                            Onthe Transfer Date:

 

(i)                                    tothe extent that in the Transfer Certificate the Existing Lender seeks totransfer 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)                                 eachof the Obligors and the New Lender shall assume obligations towards one anotherand/or acquire rights against one another which differ from the DischargedRights and Obligations only insofar as that Obligor and the New Lender haveassumed and/or acquired the same in place of that Obligor and the ExistingLender;

 

(iii)                               theAgent, the Arranger, the Security Agent, the New Lender, the other Lenders, theIssuing Bank and any relevant Ancillary Lenders shall acquire the same rightsand assume the same obligations between themselves as they would have acquiredand assumed had the New Lender been an Original Lender with the rights and/orobligations acquired or assumed by it as a result of the transfer and to thatextent the Agent, the Arranger, the Security Agent, the Issuing Bank, anyrelevant Ancillary Lender and the Existing Lender shall each be released fromfurther obligations to each other under the Finance Documents; and

 

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

 

**34.6**                   Copyof Transfer Certificate to Company

** **

The Agent shall, as soon as reasonably practicable after ithas executed a Transfer Certificate, send to the Company a copy of thatTransfer Certificate.

 

**34.7**                   Disclosureof information

** **

Any Lender may disclose to any of its Affiliates and anyother person:

 

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(a)                                   to(or through) whom that Lender assigns or transfers (or may potentially assignor transfer) all or any of its rights and obligations under this Agreement;

 

(b)                                  with(or through) whom that Lender enters into (or may potentially enter into) anysub-participation in relation to, or any other transaction under which paymentsare to be made by reference to, this Agreement or any Obligor;

 

(c)                                   towhom, and to the extent that, information is required to be disclosed by anyapplicable law or regulation; or

 

(d)                                  forwhose benefit that Lender charges, assigns or otherwise creates Security (ormay do so) pursuant to Clause 34.8 (*Security over Lenders’rights*),

 

any information about any Obligor, the Group and the FinanceDocuments as that Lender shall consider appropriate if, in relation toparagraphs (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 to Lenders underthis Clause 34, each Lender may without consulting with or obtaining consentfrom any Obligor, at any time charge, assign or otherwise create Security in orover (whether by way of collateral or otherwise) all or any of its rights underany Finance Document to secure obligations of that Lender including:

 

(a)                                   anycharge, assignment or other Security to secure obligations to a federal reserveor central bank; and

 

(b)                                  inthe case of any Lender which is a fund, any charge, assignment or otherSecurity granted to any holders (or trustee or representatives of holders) ofobligations owed, or securities issued, by that Lender as Security for thoseobligations or securities,

 

except that no such charge, assignment or Security shall:

 

(i)                                 releasea Lender from any of its obligations under the Finance Documents or substitutethe beneficiary of the relevant charge, assignment or Security for the Lenderas a party to any of the Finance Documents; or

 

(ii)                              requireany payments to be made by an Obligor or grant to any person any more extensiverights than those required to be made or granted to the relevant Lender underthe Finance Documents.

 

**35.**                         CHANGES TO THE OBLIGORS

** **

**35.1**                   Assignmentsand transfer by Obligors

** **

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

** **

**35.2**                   AdditionalBorrowers

** **

(a)                            Subjectto compliance with the provisions of paragraphs (c) and (d) of Clause30.6 (*“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)                                     allthe Lenders participating in the relevant Facility approve the addition of thatSubsidiary;

 

(ii)                                  theCompany delivers to the Agent a duly completed and executed Accession Letter;

 

(iii)                               theCompany confirms that no Default is continuing or would occur as a result ofthat Subsidiary becoming an Additional Borrower; and

 

(iv)                              theAgent has received all of the documents and other evidence listed in Part IIof Schedule 2 (*Conditions precedent*)in relation to that Additional Borrower, each in form and substancesatisfactory to the Agent.

 

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

 

**35.3**                   Resignationof a Borrower

** **

(a)                            Inthis Clause 28.3 (*Resignation of a Borrower*),Clause 35.5 (*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)                           Ifa Borrower is the subject of a Third Party Disposal, the Company may requestthat such Borrower (other than the Company) ceases to be a Borrower bydelivering to the Agent a Resignation Letter.

 

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

 

(i)                                     theCompany has confirmed that no Default is continuing or would result from theacceptance of the Resignation Letter;

 

(ii)                                  theBorrower is under no actual or contingent obligations as a Borrower under anyFinance Documents;

 

(iii)                               wherethe Borrower is also a Guarantor (unless its resignation has been accepted inaccordance 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)                              theCompany has confirmed that it shall ensure that any relevant Net Sale Proceedswill be applied in accordance with Clause 18.5 (*Mandatoryprepayment — Net Sale Proceeds*).

 

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

 

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(e)                            TheAgent may, at the cost and expense of the Company, require a legal opinion fromcounsel to the Agent confirming the matters set out in paragraph (c)(iii) aboveand the Agent shall be under no obligation to accept a Resignation Letter untilit has obtained such opinion in form and substance satisfactory to it.

 

**35.4**                   AdditionalGuarantors

** **

(a)                            Subjectto compliance with the provisions of paragraphs (c) and (d) of Clause30.6 (*“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)                                     (exceptin the case of an Additional Guarantor incorporated in a jurisdiction ofincorporation of an existing Obligor) the Agent approves the addition of thatSubsidiary;

 

(ii)                                  theCompany delivers to the Agent a duly completed and executed Accession Letter;and

 

(iii)                               theAgent has received all of the documents and other evidence listed in Part IIof Schedule 2 (*Conditions precedent*)in relation to that Additional Guarantor, each in form and substancesatisfactory to the Agent.

 

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

 

**35.5**                   Resignationof a Guarantor

** **

(a)                            TheCompany may request that a Guarantor (other than the Company) ceases to be aGuarantor by delivering to the Agent a Resignation Letter if that Guarantor isbeing disposed of by way of a Third Party Disposal (as defined in Clause 35.3 (*Resignation of a Borrower*)) and the Company has confirmed this is the case.

 

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

 

(i)                                     theCompany has confirmed that no Default is continuing or would result from theacceptance of the Resignation Letter;

 

(ii)                                  nopayment is due from the Guarantor under Clause 28.1 (*Guaranteeand indemnity*);

 

(iii)                               wherethe Guarantor is also a Borrower, it is under no actual or contingentobligations as a Borrower and has resigned and ceased to be a Borrower underClause 35.3 (*Resignation of a Borrower*); and

 

(iv)                              theCompany has confirmed that it shall ensure that the Net Sale Proceeds will beapplied, in accordance with Clause 18.5 (*Mandatory Prepayment — NetSale Proceeds*).

 

(c)                            Theresignation of that Guarantor shall not be effective until the date of therelevant Third Party Disposal at which time that company shall cease to be aGuarantor and shall have no further rights or obligations under the FinanceDocuments as a Guarantor.

 

**35.6**                   Repetitionof Representations

** **

Delivery of an Accession Letter constitutes confirmation bythe relevant Subsidiary that the Repeating Representations and each of therepresentations set out in Clauses 29.5 (*Validityand 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 of delivery asif made by reference to the facts and circumstances then existing.

 

**35.7**                   Resignationand release of security on disposal

** **

(a)                            Ifa Borrower or Guarantor is or is proposed to be the subject of a Third PartyDisposal then:

 

(i)                                     wherethat Borrower or Guarantor created Security pursuant to any Finance Documentover any of its assets or business in favour of the Security Agent, or Securitypursuant to any Finance Document in favour of the Security Agent was createdover the shares (or equivalent) of that Borrower or Guarantor, the SecurityAgent may at the cost and request of the Company, release those assets,business or shares (or equivalent) and issue certificates ofnon-crystallisation;

 

(ii)                                  theresignation of that Borrower or Guarantor and related release of Securitypursuant to any Finance Document referred to in paragraph (i) above shallnot become effective until the date of that disposal; and

 

(iii)                               ifthe disposal of that Borrower or Guarantor is not made, the Resignation Letterof that Borrower or Guarantor and the related release of Security referred toin paragraph (i) above shall have no effect and the obligations of theBorrower or Guarantor and the Security pursuant to any Finance Document createdor intended to be created by or over that Borrower or Guarantor shall continuein full force and effect.

 

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**SECTION 10**

** **

**THE FINANCEPARTIES**

** **

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

** **

**36.1**                  Appointmentof the Agent and the Security Agent

** **

(a)                            Eachother Finance Party appoints the Agent to act as its agent under and inconnection with the Finance Documents.

 

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

 

(c)                            Eachother Finance Party authorises each of the Agent and the Security Agent toexercise the rights, powers, authorities and discretions specifically given toit under or in connection with the Finance Documents together with any otherincidental rights, powers, authorities and discretions.

 

(d)                           Forthe avoidance of doubt, each other Finance Party authorises the Agent toexecute and deliver the Subordination Agreement.

 

**36.2**                  Dutiesof the Agent and the Security Agent

** **

(a)                            TheAgent shall promptly forward to a Party the original or a copy of any documentwhich is delivered to the Agent for that Party by any other Party.

 

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

 

(c)                            Ifthe Agent receives notice from a Party referring to this Agreement, describinga Default and stating that the circumstance described is a Default, it shallpromptly notify the Finance Parties.

 

(d)                           Ifthe Agent is aware of the non-payment of any principal, interest, commitmentfee or other fee payable to a Finance Party (other than the Agent or theArranger) under this Agreement it shall promptly notify the other FinanceParties.

 

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

 

(f)                              Theduties of the Agent and the Security Agent under the Finance Documents aresolely mechanical and administrative in nature.

 

**36.3**                  Roleof the Arranger

** **

Except as specifically provided in the Finance Documents,the Arranger has no obligations of any kind to any other Party under or inconnection with any Finance Document.

 

**36.4**                  Roleof the Security Agent

** **

The Security Agent shall not be an agent of (except as expresslyprovided in any Finance Document) any Finance Party under or in connection withany Finance Document.

 

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**36.5**                  Nofiduciary duties

** **

(a)                            Nothingin this Agreement constitutes the Agent, the Security Agent (except asexpressly provided in any Finance Document) or the Arranger as a trustee orfiduciary of any other person.

 

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

 

**36.6**                  Businesswith the Group

** **

The Agent, the Security Agent and the Arranger may acceptdeposits from, lend money to and generally engage in any kind of banking orother business with any member of the Group.

 

**36.7**                  Rightsand discretions of the Agent and the Security Agent

** **

(a)                            TheAgent and the Security Agent may rely on:

 

(i)                                    anyrepresentation, notice or document believed by it to be genuine, correct andappropriately authorised ; and

 

(ii)                                 anystatement made by a director, authorised signatory or employee of any personregarding any matters which may reasonably be assumed to be within hisknowledge or within his power to verify.

 

(b)                           TheAgent and the Security Agent may assume (unless it has received notice to thecontrary in its capacity as agent for the Lenders or, as the case may be, assecurity trustee for the Finance Parties) that:

 

(i)                                    noDefault has occurred (unless it has actual knowledge of a Default arising underClause 33.1 (*Non-payment*));

 

(ii)                                 anyright, power, authority or discretion vested in any Party or the MajorityLenders has not been exercised; and

 

(iii)                              anynotice or request made by the Company (other than a Utilisation Request orSelection Notice) is made on behalf of and with the consent and knowledge ofall the Obligors.

 

(c)                            Eachof the Agent and the Security Agent may engage, pay for and rely on the adviceor services of any lawyers, accountants, surveyors or other experts.

 

(d)                           Eachof the Agent and the Security Agent may act in relation to the FinanceDocuments through its personnel and agents.

 

(e)                            TheAgent may disclose to any other Party any information it reasonably believes ithas received as agent under this Agreement.

 

(f)                              Notwithstandingany other provision of any Finance Document to the contrary, neither the Agent,the Security Agent nor the Arranger is obliged to do or omit to do anything ifit would or might in its reasonable opinion constitute a breach of any law orregulation or a breach of a fiduciary duty or duty of confidentiality.

 

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**36.8**                  MajorityLenders’ instructions

** **

(a)                            Unlessa contrary indication appears in a Finance Document, the Agent and the SecurityAgent shall (i) exercise any right, power, authority or discretion vestedin it as Agent or Security Agent (as the case may be) in accordance with anyinstructions given to it by the Majority Lenders (or, if so instructed by theMajority Lenders, refrain from exercising any right, power, authority ordiscretion vested in it as Agent or Security Agent, as the case may be) and (ii) notbe liable for any act (or omission) if it acts (or refrains from taking anyaction) in accordance with an instruction of the Majority Lenders.

 

(b)                           Unlessa contrary indication appears in a Finance Document, any instructions given bythe Majority Lenders will be binding on all the Finance Parties.

 

(c)                            Eachof the Agent and the Security Agent may refrain from acting in accordance withthe instructions of the Majority Lenders (or, if appropriate, the Lenders)until it has received such security as it may require for any cost, loss orliability (together with any associated VAT) which it may incur in complyingwith the instructions.

 

(d)                           Inthe absence of instructions from the Majority Lenders (or, if appropriate, theLenders), each of the Agent and the Security Agent may act (or refrain fromtaking action) as it considers to be in the best interest of the Lenders.

 

(e)                            Neitherthe Agent nor the Security Agent is authorised to act on behalf of a Lender (without first obtaining thatLender’s consent) in any legal or arbitration proceedings relating to anyFinance Document.

 

**36.9**                  Responsibilityfor documentation

** **

Neither the Agent, the Security Agent nor the Arranger:

 

(a)                                   isresponsible for the adequacy, accuracy and/or completeness of any information(whether oral or written) supplied by the Agent, the Security Agent, theArranger, an Obligor or any other person given in or in connection with anyFinance Document or the Information Memorandum; or

 

(b)                                  isresponsible 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)                            Withoutlimiting paragraph (b) below (and without prejudice to the provisions ofparagraph (e) of Clause 40.11 (*Disruptionto Payment Systems etc*)), neither the Agent nor the Security Agentwill be liable including without limitation for negligence or any othercategory of liability whatsoever for any action taken by it under or inconnection with any Finance Document, unless directly caused by its gross negligenceor wilful misconduct.

 

(b)                           NoParty (other than the Agent or the Security Agent) may take any proceedingsagainst any officer, employee or agent of the Agent or the Security Agent inrespect of any claim it might have against the Agent or the Security Agent orin respect of any act or omission of any kind by that officer, employee oragent in relation to any Finance Document and any officer, employee or agent ofthe Agent or the Security Agent may rely on this Clause.

 

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(c)                            Neitherthe Agent nor the Security Agent will be liable for any delay (or any relatedconsequences) in crediting an account with an amount required under the FinanceDocuments to be paid by it if it has taken all necessary steps as soon asreasonably practicable to comply with the regulations or operating proceduresof any recognised clearing or settlement system used by it for that purpose.

 

(d)                           Nothingin this Agreement shall oblige the Agent or the Arranger to carry out any “knowyour customer” or other checks in relation to any person on behalf of anyLender and each Lender confirms to the Agent and the Arranger that it is solelyresponsible for any such checks it is required to carry out and that it may notrely on any statement in relation to such checks made by the Agent or theArranger.

 

**36.11**            Lenders’indemnity to the Agent and the Security Agent

** **

Each Lender shall (in proportion to its share of the TotalCommitments or, if the Total Commitments are then zero, to its share of theTotal Commitments immediately prior to their reduction to zero) indemnify theAgent and the Security Agent, within three Business Days of demand, against anycost, loss or liability including without limitation for negligence or anyother category of liability whatsoever incurred by the Agent or the SecurityAgent (otherwise than by reason of its gross negligence or wilful misconduct)(or in the case of any cost, loss or liability pursuant to Clause 40.11 (*Disruption to Payment Systems etc.*)notwithstanding the Agent’s negligence, gross negligence or any other categoryof liability whatsoever but not including any claim based on the fraud of theAgent) in acting as Agent or, as the case may be, Security Agent under theFinance Documents (unless it has been reimbursed by an Obligor pursuant to aFinance Document).

 

**36.12**            Resignationof the Agent or the Security Agent

** **

(a)                            TheAgent or the Security Agent may resign and appoint one of its Affiliates actingthrough an office in the United Kingdom, Germany or Finland as successor bygiving notice to the other Finance Parties and the Company.

 

(b)                           Alternativelythe Agent or the Security Agent may resign by giving notice to the otherFinance Parties and the Company, in which case the Majority Lenders (after consultationwith the Company) may appoint a successor Agent or, as the case may be,Security Agent in each case acting through an office in the United Kingdom,Germany or Finland.

 

(c)                            Ifthe Majority Lenders have not appointed a successor Agent or, as the case maybe, Security Agent in accordance with paragraph (b) above within 30 daysafter notice of resignation was given, the Agent or, as the case may be,Security Agent (after consultation with the Company) may appoint a successorAgent or Security Agent.

 

(d)                           Theretiring Agent or Security Agent shall, at its own cost, make available to itssuccessor such documents and records and provide such assistance as itssuccessor may reasonably request for the purposes of performing its functionsas Agent or Security Agent under the Finance Documents.

 

(e)                            Theresignation notice of the Agent or Security Agent shall only take effect uponthe appointment of a successor.

 

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(f)                              Uponthe appointment of a successor, the retiring Agent or Security Agent shall bedischarged from any further obligation in respect of the Finance Documents butshall remain entitled to the benefit of this Clause 36. Its successor and eachof the other Parties shall have the same rights and obligations amongstthemselves as they would have had if such successor had been an original Party.

 

(g)                           Afterconsultation with the Company, the Majority Lenders may, by notice to the Agentor, as the case may be, the Security Agent, require it to resign in accordancewith paragraph (b) above.  In thisevent, the Agent or, as the case may be, the Security Agent shall resign inaccordance with paragraph (b) above.

 

**36.13**            Confidentiality

** **

(a)                            TheAgent (in acting as agent for the Finance Parties) and the Security Agent (inacting as security trustee for the Finance Parties) shall be regarded as actingthrough its respective agency or security trustee division which in each caseshall be treated as a separate entity from any other of its divisions ordepartments.

 

(b)                           Ifinformation is received by another division or department of the Agent or, asthe case may be, the Security Agent, it may be treated as confidential to thatdivision or department and the Agent or, as the case may be, the Security Agentshall not be deemed to have notice of it.

 

**36.14**            Relationshipwith the Lenders

** **

(a)                            TheAgent may treat each Lender as a Lender, entitled to payments under thisAgreement and acting through its Facility Office unless it has received notless than five Business Days prior notice from that Lender to the contrary inaccordance with the terms of this Agreement.

 

(b)                           EachLender shall supply the Agent with any information required by the Agent inorder to calculate the Mandatory Cost in accordance with Schedule 4 (*Mandatory Cost**formulae*).

 

**36.15**            Creditappraisal by the Lenders

** **

Without affecting the responsibility of any Obligor forinformation supplied by it or on its behalf in connection with any FinanceDocument, 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)                                   thefinancial condition, status and nature of each member of the Group;

 

(b)                                  thelegality, validity, effectiveness, adequacy or enforceability of any FinanceDocument and any other agreement, Security, arrangement or document enteredinto, made or executed in anticipation of, under or in connection with anyFinance Document;

 

(c)                                   whetherthat Lender has recourse, and the nature and extent of that recourse, againstany Party or any of its respective assets under or in connection with anyFinance Document, the transactions contemplated by the Finance Documents or anyother agreement, Security, arrangement or document entered into, made orexecuted in anticipation of, under or in connection with any Finance Document;and

 

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(d)                                  theadequacy, accuracy and/or completeness of the Information Memorandum and anyother information provided by the Agent, the Security Agent, any Party or byany other person under or in connection with any Finance Document, thetransactions contemplated by the Finance Documents or any other agreement,Security, arrangement or document entered into, made or executed inanticipation of, under or in connection with any Finance Document.

 

**36.16**            ReferenceBanks

** **

If a Reference Bank (or, if a Reference Bank is not aLender, the Lender of which it is an Affiliate) ceases to be a Lender, theAgent 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 is continuing, anyamount 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 7 (*Security Agency provisions*) shall bind each Party.

 

**36.19**            Deductionfrom amounts payable by the Agent or the Security Agent

** **

If any Party owes an amount to the Agent or the SecurityAgent under the Finance Documents the Agent or the Security Agent (as the casemay be) may, after giving notice to that Party, deduct an amount not exceedingthat amount from any payment to that Party which the Agent or the SecurityAgent (as the case may be) would otherwise be obliged to make under the FinanceDocuments and apply the amount deducted in or towards satisfaction of theamount owed.  For the purposes of theFinance Documents that Party shall be regarded as having received any amount sodeducted.

 

**37.**                        PARALLEL DEBT

** **

(a)                            EachObligor hereby irrevocably and unconditionally undertakes to pay to theSecurity Agent amounts equal to any amounts owing from time to time by thatObligor to any Finance Party under any Finance Document as and when thoseamounts are due.

 

(b)                           EachObligor and the Security Agent acknowledge that the obligations of each Obligorunder paragraph (a) are several and are separate and independentfrom, and shall not in any way affect, the corresponding obligations of thatObligor to any Finance Party under any Finance Document (its “**Corresponding Debt**”) provided that:

 

(i)                                     theamounts for which each Obligor is liable under paragraph (a) (its “**Parallel Debt**”) shall be decreased to theextent that its Corresponding Debt has been irrevocably paid or (in the case ofguarantee obligations) discharged; and

 

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(ii)                                 theCorresponding Debt of each Obligor shall be decreased to the extent that itsParallel Debt has been irrevocably paid or (in the case of guaranteeobligations) discharged; and

 

(iii)                              theParallel Debt of an Obligor shall not exceed its Corresponding Debt.

 

(c)                            Forthe purpose of this Clause 37, the Security Agent acts in its own name and notas a trustee, and its claims in respect of the Parallel Debt shall not be heldon trust. The Security granted under the Secured Documents to the SecurityAgent to secure the Parallel Debt is granted to the Security Agent in itscapacity as creditor of the Parallel Debt and shall not be held on trust.

 

(d)                           Allmonies received by the Security Agent pursuant to this Clause, and all amountsreceived by the Security Agent from or by the enforcement of any Securitygranted to secure the Parallel Debt, shall be applied in accordance withparagraph 15 (*Order of application*)of Schedule 7 (*Security Agency provisions*)of this Agreement.

 

(e)                            Withoutlimiting or affecting the Security Agent’s rights against the Obligors (whetherunder this Clause or under any other provision of the Finance Document), eachObligor acknowledges that:

 

(i)                                    nothingin this Clause shall impose any obligation on the Security Agent to advance anysum to any Obligor or otherwise under any Finance Document, except in itscapacity as Senior Lender; and

 

(ii)                                 forthe purpose of any vote taken under any Finance Document, the Security Agentshall not be regarded as having any participation or commitment other thanthose which it has in its capacity as a Lender.

 

**38.**                        CONDUCT OF BUSINESS BY THE FINANCE PARTIES

** **

No provision of this Agreement will:

 

(a)                                 interferewith the right of any Finance Party to arrange its affairs (tax or otherwise)in whatever manner it thinks fit;

 

(b)                                obligeany Finance Party to investigate or claim any credit, relief, remission orrepayment available to it or the extent, order and manner of any claim; or

 

(c)                                 obligeany Finance Party to disclose any information relating to its affairs (tax orotherwise) or any computations in respect of Tax.

 

**39.**                        SHARING AMONG THE FINANCE PARTIES

** **

**39.1**                  Paymentsto Finance Parties

** **

If a Finance Party (a “**Recovering Finance Party**”)receives or recovers any amount from an Obligor other than in accordance withClause 40 (*Payment mechanics*) andapplies that amount to a payment due under the Finance Documents then:

 

(a)                                   theRecovering Finance Party shall, within three Business Days, notify details ofthe receipt or recovery to the Agent;

 

(b)                                  theAgent shall determine whether the receipt or recovery is in excess of theamount the Recovering Finance Party would have been paid had the receipt orrecovery been received or made by the Agent and distributed in accordance withClause 40 (*Payment*

 

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*mechanics*), without taking account ofany Tax which would be imposed on the Agent in relation to the receipt,recovery or distribution; and

 

(c)                                   theRecovering Finance Party shall, within three Business Days of demand by theAgent, pay to the Agent an amount (the “**Sharing Payment**”)equal to such receipt or recovery less any amount which the Agent determinesmay be retained by the Recovering Finance Party as its share of any payment tobe made, in accordance with Clause 40.5 (*Partialpayments*).

 

**39.2**                  Redistributionof payments

** **

The Agent shall treat the Sharing Payment as if it had beenpaid by the relevant Obligor and distribute it between the Finance Parties(other than the Recovering Finance Party) in accordance with Clause 40.5 (*Partial payments*).

 

**39.3**                  RecoveringFinance Party’s rights

** **

(a)                            Ona distribution by the Agent under Clause 39.2 (*Redistributionof payments*), the Recovering Finance Party will be subrogated to therights of the Finance Parties which have shared in the redistribution.

 

(b)                           Ifand to the extent that the Recovering Finance Party is not able to rely on itsrights under paragraph (a) above, the relevant Obligor shall be liable tothe Recovering Finance Party for a debt equal to the Sharing Payment which isimmediately due and payable.

 

**39.4**                  Reversalof redistribution

** **

If any part of the Sharing Payment received or recovered bya Recovering Finance Party becomes repayable and is repaid by that RecoveringFinance Party, then:

 

(a)                                   eachFinance Party which has received a share of the relevant Sharing Paymentpursuant to Clause 39.2 (*Redistribution ofpayments*) 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)                                  thatRecovering 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)                            ThisClause 39 shall not apply to the extent that the Recovering Finance Party wouldnot, after making any payment pursuant to this Clause, have a valid andenforceable claim against the relevant Obligor.

 

(b)                           ARecovering Finance Party is not obliged to share with any other Finance Partyany amount which the Recovering Finance Party has received or recovered as aresult of taking legal or arbitration proceedings, if:

 

(i)                                      itnotified that other Finance Party of the legal or arbitration proceedings; and

 

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(ii)                                 thatother Finance Party had an opportunity to participate in those legal orarbitration proceedings but did not do so as soon as reasonably practicablehaving received notice and did not take separate legal or arbitrationproceedings.

 

**39.6**                  Losssharing

** **

(a)                            In this Clause:

 

“**Loss Sharing Date**” means the date (if any) on which theAgent exercises any of its rights under paragraph (a)(ii) and/or (a)(iv) ofClause 33.16 (*Acceleration*) orthe date (if any) on which the Facilities are cancelled under Clause 18.3 (*Change of control*).

 

(b)                           If, at any timeafter the Loss Sharing Date, for any reason:

 

(i)                                      any outstandingsunder Facility B or any Ancillary Facility will not be repaid and/ordischarged; and

 

(ii)                                   any resulting lossis not shared between the Facility B Lenders and the Ancillary Lenders pro ratato the amount which their respective exposures, whether drawn or undrawn, boreto their total exposure, whether drawn or undrawn, as at the Loss Sharing Date,

 

theFacility B Lenders and the Ancillary Lenders shall make such payments betweenthemselves as the Agent shall require to ensure that after taking into accountsuch payments, any such loss is shared between the Facility B Lenders and theAncillary Lenders pro rata to the amount which their respective exposures,whether drawn or undrawn, bore to their total exposure, whether drawn orundrawn, as at the Loss Sharing Date.

 

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**SECTION 11**

** **

**ADMINISTRATION**

** **

**40.**                        PAYMENT MECHANICS

** **

**40.1**                  Paymentsto the Agent

** **

(a)                            Oneach date on which an Obligor or a Lender is required to make a payment under aFinance 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)                           Paymentshall be made to such account in the principal financial centre of the countryof that currency (or, in relation to euro, in the principal financial centre ina Participating Member State or London) with such bank as the Agent specifies.

 

**40.2**                  Distributionsby the Agent

** **

Each payment received by the Agent under the FinanceDocuments 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 the consent ofthe Obligor or in accordance with Clause 41 (*Set-off*))apply any amount received by it for that Obligor in or towards payment (on thedate and in the currency and funds of receipt) of any amount due from thatObligor under the Finance Documents or in or towards purchase of any amount ofany currency to be so applied.

 

**40.4**                  Clawback

** **

(a)                            Wherea sum is to be paid to the Agent or the Security Agent under the FinanceDocuments for another Party, the Agent or, as the case may be, the SecurityAgent is not obliged to pay that sum to that other Party (or to enter into orperform any related exchange contract) until it has been able to establish toits satisfaction that it has actually received that sum.

 

(b)                           Ifthe Agent or the Security Agent pays an amount to another Party and it provesto be the case that it had not actually received that amount, then the Party towhom that amount (or the proceeds of any related exchange contract) was paidshall on demand refund the same to the Agent or, as the case may be, theSecurity Agent together with interest on that amount from the date of paymentto the date of receipt by the Agent or, as the case may be, the Security Agent,calculated by it to reflect its cost of funds.

 

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**40.5**                  Partialpayments

** **

(a)                            Ifthe Agent receives a payment that is insufficient to discharge all the amountsthen due and payable by an Obligor under the Finance Documents, the Agent shallapply that payment towards the obligations of that Obligor under the FinanceDocuments in the following order:

 

(i)                                    first,in or towards payment pro rata of any unpaid fees, costs and expenses of theAgent, the Security Agent, the Issuing Bank or the Arranger under the FinanceDocuments;

 

(ii)                                 secondly,in or towards payment pro rata of any accrued interest, fee or commission duebut unpaid under this Agreement or any Ancillary Facility Document;

 

(iii)                              thirdly,in or towards payment pro rata of any principal due but unpaid under thisAgreement or any Ancillary Facility Document and any amount due but unpaidunder Clauses 14.4 (*Claims under a Letter ofCredit or Bank Guarantee*)and 14.5 (*Indemnities*); and

 

(iv)                             fourthly,in or towards payment pro rata of any other sum due but unpaid under theFinance Documents or any Ancillary Finance Document,

 

provided that the Agent shall not make any such payments toany Ancillary Lender prior to the Agent delivering a notice to the Companypursuant to paragraphs (a) (ii) or (a) (iv) of Clause 33.16(*Acceleration*) or any date on which theFacilities are cancelled pursuant to Clause 18.3(*Change of control*).

 

(b)                           TheAgent shall, if so directed by the Majority Lenders, vary the order set out inparagraphs (a)(ii) to (iv) above.

 

(c)                            Paragraphs(a) and (b) above will override any appropriation made by an Obligor.

 

**40.6**                  Noset-off by Obligors

** **

All payments to be made by an Obligor under the FinanceDocuments shall be calculated and be made without (and free and clear of anydeduction for) set-off or counterclaim.

 

**40.7**                  BusinessDays

** **

(a)                            Anypayment which is due to be made on a day that is not a Business Day shall bemade on the next Business Day in the same calendar month (if there is one) orthe preceding Business Day (if there is not).

 

(b)                           Duringany extension of the due date for payment of any principal or Unpaid Sum underthis Agreement interest is payable on the principal or Unpaid Sum at the ratepayable on the original due date.

 

**40.8**                  Currencyof account

** **

(a)                            Subjectto paragraphs (b) to (e) below, the Base Currency is the currency ofaccount and payment for any sum due from an Obligor under any Finance Document.

 

(b)                           Arepayment of a Utilisation or Unpaid Sum or a part of a Utilisation or UnpaidSum shall be made in the currency in which that Utilisation or Unpaid Sum isdenominated on its due date.

 

(c)                            Eachpayment of interest shall be made in the currency in which the sum in respectof which the interest is payable was denominated when that interest accrued.

 

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(d)                           Eachpayment in respect of costs, expenses or Taxes shall be made in the currency inwhich the costs, expenses or Taxes are incurred.

 

(e)                            Anyamount expressed to be payable in a currency other than the Base Currency shallbe paid in that other currency.

 

**40.9**                  Changeof currency

** **

(a)                            Unlessotherwise prohibited by law, if more than one currency or currency unit are atthe same time recognised by the central bank of any country as the lawfulcurrency of that country, then:

 

(i)                                    anyreference in the Finance Documents to, and any obligations arising under theFinance Documents in, the currency of that country shall be translated into, orpaid in, the currency or currency unit of that country designated by the Agent(after consultation with the Company); and

 

(ii)                                 anytranslation from one currency or currency unit to another shall be at theofficial rate of exchange recognised by the central bank for the conversion ofthat currency or currency unit into the other, rounded up or down by the Agent(acting reasonably).

 

(b)                           Ifa change in any currency of a country occurs, this Agreement will, to theextent the Agent (acting reasonably and after consultation with the Company)specifies to be necessary, be amended to comply with any generally acceptedconventions and market practice in the Relevant Interbank Market and otherwiseto reflect the change in currency.

 

**40.10**            Paymentsto the Security Agent

** **

Notwithstanding any other provision of any Finance Document,at any time after any Security created by or pursuant to any Security Documentbecomes enforceable, the Security Agent may require:

 

(a)                                   anyObligor to pay all sums due under any Finance Document; or

 

(b)                                  theAgent to pay all sums received or recovered from an Obligor under any FinanceDocument,

 

in each case as the Security Agent may direct forapplication in accordance with the terms of the Security Documents.

 

**40.11**            Disruptionto Payment Systems etc.

** **

If either the Agent determines (in its discretion) that aDisruption Event has occurred or the Agent is notified by the Company that aDisruption Event has occurred:

 

(a)                                   theAgent may, and shall if requested to do so by the Company, consult with theCompany with a view to agreeing with the Company such changes to the operationor administration of the Facilities as the Agent may deem necessary in thecircumstances;

 

(b)                                  theAgent shall not be obliged to consult with the Company in relation to anychanges 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)                                   theAgent may consult with the Finance Parties in relation to any changes mentionedin paragraph (a) but shall not be obliged to do so if, in its opinion, itis not practicable to do so in the circumstances;

 

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(d)                                 anysuch changes agreed upon by the Agent and the Company shall (whether or not it isfinally determined that a Disruption Event has occurred) be binding upon theParties as an amendment to (or, as the case may be, waiver of) the terms of theFinance Documents notwithstanding the provisions of Clause 46 (*Amendments and Waivers*);

 

(e)                                  theAgent shall not be liable for any damages, costs or losses whatsoever (including,without limitation for negligence, gross negligence or any other category ofliability whatsoever but not including any claim based on the fraud of theAgent) arising as a result of its taking, or failing to take, any actionspursuant to or in connection with this Clause 40.11; and

 

(f)                                    theAgent shall notify the Finance Parties of all changes agreed pursuant toparagraph (d) above.

 

**41.**                        SET-OFF

** **

A Finance Party may set off any matured obligation due froman Obligor under the Finance Documents (to the extent beneficially owned bythat Finance Party) against any matured obligation owed by that Finance Partyto that Obligor, regardless of the place of payment, booking branch or currencyof either obligation.  If the obligationsare in different currencies, the Finance Party may convert either obligation ata market rate of exchange in its usual course of business for the purpose ofthe set-off.

 

**42.**                        NOTICES

** **

**42.1**                  Communicationsin writing

** **

Any communication to be made under or in connection with theFinance Documents shall be made in writing and, unless otherwise stated, may bemade by fax or letter.

 

**42.2**                  Addresses

** **

The address and fax number (and the department or officer,if any, for whose attention the communication is to be made) of each Party forany communication or document to be made or delivered under or in connectionwith the Finance Documents is:

 

(a)                                  inthe case of the Company, that identified with its name in the signature pages below;

 

(b)                                 inthe case of each Lender, each Ancillary Lender or any other Original Obligor,that notified in writing to the Agent on or prior to the date on which itbecomes a Party; and

 

(c)                                  inthe case of the Agent, the Issuing Bank and the Security Agent, that identifiedwith its name in the signature pages below,

 

or any substitute address, fax number or department orofficer as the Party may notify to the Agent (or the Agent may notify to theother Parties, if a change is made by the Agent) by not less than five BusinessDays’ notice.

 

**42.3**                  Delivery

** **

(a)                            Anycommunication or document made or delivered by one person to another under orin connection with the Finance Documents will only be effective:

 

(i)                                      ifby way of fax, when received in legible form; or

 

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(ii)                                 ifby way of letter, when it has been left at the relevant address or fiveBusiness Days after being deposited in the post postage prepaid in an envelopeaddressed to it at that address,

 

and, if a particular department or officer is specified aspart of its address details provided under Clause 42.2 (*Addresses*), if addressed to thatdepartment or officer.

 

(b)                           Anycommunication or document to be made or delivered to the Agent or the SecurityAgent will be effective only when actually received by the Agent and then onlyif it is expressly marked for the attention of the department or officeridentified with its signature below (or any substitute department or officer asit shall specify for this purpose).

 

(c)                            Allnotices from or to an Obligor shall be sent through the Agent.

 

(d)                           Anycommunication or document made or delivered to the Company in accordance withthis Clause will be deemed to have been made or delivered to each of the Obligors.

 

**42.4**                  Notificationof address and fax number

** **

Promptly upon receipt of notification of an address and faxnumber or change of address or fax number pursuant to Clause 42.2 (*Addresses*) or changing its own address orfax number, the Agent shall notify the other Parties.

 

**42.5**                  Electroniccommunication

** **

(a)                            Anycommunication to be made between the Agent and a Lender or the Company under orin connection with the Finance Documents may be made by electronic mail orother electronic means, if the Agent and the relevant Lender or the Company:

 

(i)                                     agreethat, unless and until notified to the contrary, this is to be an accepted formof communication;

 

(ii)                                  notifyeach other in writing of their electronic mail address and/or any otherinformation required to enable the sending and receipt of information by thatmeans; and

 

(iii)                               notifyeach other of any change to their address or any other such informationsupplied by them.

 

(b)                           Anyelectronic communication made between the Agent and a Lender or the Companywill be effective only when actually received in readable form and in the caseof any electronic communication made by a Lender or the Company to the Agentonly if it is addressed in such a manner as the Agent shall specify for thispurpose.

 

**42.6**                  Englishlanguage

** **

(a)                            Anynotice given under or in connection with any Finance Document must be inEnglish.

 

(b)                           Allother documents provided under or in connection with any Finance Document mustbe:

 

(i)                                     inEnglish; or

 

(ii)                                  ifnot in English, and if so required by the Agent, accompanied by a certifiedEnglish translation and, in this case, the English translation will prevailunless the document is a constitutional, statutory or other official document.

 

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**43.**                        CALCULATIONS AND CERTIFICATES

** **

**43.1**                  Accounts

** **

In any litigation or arbitration proceedings arising out ofor in connection with a Finance Document, the entries made in the accountsmaintained by a Finance Party are prima facie evidence of the matters to whichthey relate.

 

**43.2**                  Certificatesand Determinations

** **

Any certification or determination by a Finance Party of arate or amount under any Finance Document is, in the absence of manifest error,conclusive evidence of the matters to which it relates.

 

**43.3**                  Daycount convention

** **

Any interest, commission or fee accruing under a FinanceDocument will accrue from day to day and is calculated on the basis of theactual number of days elapsed and a year of 360 days or, in any case where thepractice in the Relevant Interbank Market differs, in accordance with thatmarket practice.

 

**44.**                        PARTIAL INVALIDITY

** **

If, at any time, any provision of the Finance Documents isor becomes illegal, invalid or unenforceable in any respect under any law ofany jurisdiction, neither the legality, validity or enforceability of theremaining provisions nor the legality, validity or enforceability of suchprovision under the law of any other jurisdiction will in any way be affectedor impaired.

 

**45.**                        REMEDIES AND WAIVERS

** **

No failure to exercise, nor any delay in exercising, on thepart of any Finance Party, any right or remedy under the Finance Documentsshall operate as a waiver, nor shall any single or partial exercise of anyright or remedy prevent any further or other exercise or the exercise of anyother right or remedy.  The rights andremedies provided in this Agreement are cumulative and not exclusive of anyrights or remedies provided by law.

 

**46.**                        AMENDMENTS AND WAIVERS

** **

**46.1**                  Requiredconsents

** **

(a)                            Subjectto Clause 46.2 (*Exceptions*) anyterm of the Finance Documents may be amended or waived only with the consent ofthe Majority Lenders and the Obligors and any such amendment or waiver will bebinding on all Parties.

 

(b)                           TheAgent may effect, on behalf of any Finance Party, any amendment or waiverpermitted by this Clause.

 

**46.2**                  Exceptions

** **

(a)                            Anamendment or waiver that has the effect of changing or which relates to:

 

(i)                                     thedefinition of “Majority Lenders” in Clause 8.1 (*Definitions*);

 

(ii)                                  anextension to the date of payment of any amount under the Finance Documents(other than an amount owing under Clause 18.5 (*Mandatoryprepayment — Net Sale Proceeds*) or Clause 18.7 (*Mandatoryprepayment — Insurance Proceeds*);

 

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(iii)                              areduction in the Margin or a reduction in the amount of any payment ofprincipal, interest, fees or commission payable;

 

(iv)                             anincrease in or an extension of any Commitment;

 

(v)                                achange to the Borrowers or Guarantors other than in accordance with Clause 35 (*Changes to the**Obligors*);

 

(vi)                             anyprovision which expressly requires the consent of all the Lenders;

 

(vii)                          Clause9.2 (*Finance Parties’ rights and obligations*),Clause 11.3 (*Change of Control*), Clause 34 (*Changes to the Lenders*), Clause 39 (*Sharing among the Finance Parties*) or thisClause 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 of all theLenders.

 

(b)                           Anamendment or waiver which relates to the rights or obligations of the Agent,the Security Agent, the Issuing Bank, any Ancillary Lender or the Arranger maynot be effected without the consent of the Agent, the Security Agent, theIssuing Bank, any Ancillary Lender or, as the case may be the Arranger.

 

**47.**                        COUNTERPARTS

** **

Each Finance Document may be executed in any number ofcounterparts, and this has the same effect as if the signatures on the counterpartswere on a single copy of the Finance Document.

 

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**SECTION 12**

** **

**GOVERNING LAWAND ENFORCEMENT**

** **

**48.**                        GOVERNING LAW

** **

This Agreement is governed by English law.

 

**49.**                        ENFORCEMENT

** **

**49.1**                  Jurisdiction

** **

(a)                            Thecourts of England have exclusive jurisdiction to settle any dispute arising outof or in connection with this Agreement (including a dispute regarding theexistence, validity or termination of this Agreement) (a “**Dispute**”).

 

(b)                           TheParties agree that the courts of England are the most appropriate andconvenient courts to settle Disputes and accordingly no Party will argue to thecontrary.

 

(c)                            ThisClause 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 service allowed underany relevant law, each Obligor (other than an Obligor incorporated in Englandand Wales):

 

(a)                                  irrevocablyappoints Clifford Chance Secretaries Limited at 10, Upper Bank Street, LondonE14 5JJ as its agent for service of process in relation to any proceedingsbefore the English courts in connection with any Finance Document; and

 

(b)                                 agreesthat failure by a process agent to notify the relevant Obligor of the processwill not invalidate the proceedings concerned.

 

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

 

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**SCHEDULE 4**

****THEORIGINAL PARTIES

** **

**PART I**

** **

**THE ORIGINAL OBLIGORS**

 
| **Name of Original Borrower** | ** ** | **Registration number (or equivalent, if any)** |
|----------------------------------------------|------------|--------------------------------------------------------------------------|
|                                         |       |                                                                     |
| SACHTLEBEN CHEMIE GMBH                       |       | HR B 1 96 69                                                             |
|                                         |       |                                                                     |
| FINNISH HOLDCO                               |       | 2196924-0                                                                |
|                                         |       |                                                                     |
| KEMIRA PIGMENTS OY                           |       | 0948159-2                                                                |

 
| **Name of Original Guarantor** | ** ** | **Registration number (or equivalent, if any)** |
|-----------------------------------------------|------------|--------------------------------------------------------------------------|
|                                          |       |                                                                     |
| SACHTLEBEN CHEMIE GMBH                        |       | HR B 1 96 69                                                             |
|                                          |       |                                                                     |
| FINNISH HOLDCO                                |       | 2196924-0                                                                |
|                                          |       |                                                                     |
| KEMIRA PIGMENTS OY                            |       | 0948159-2                                                                |

 

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**PART II**

**THE ORIGINAL LENDERS**

 
| **Name of Original Lender** | ** ** | **Facility A Commitment** | ** ** | **Facility B Commitment** | ** ** |
|--------------------------------------------|------------|-------------------------------------|------------|-------------------------------------|------------|
| ** **                                 | ** ** | **(€)**                        | ** ** | **(€)**                        | ** ** |
| Skandinaviska  Enskilda Banken AB (publ)   |       | 150,000,000                         |       | 15,000,000                          |       |
| Nordea Bank Finland Plc                    |       | 150,000,000                         |       | 15,000,000                          |       |

 

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SIGNATUREPAGES

 

**The****Company**

 

Deukalion Einhundertvierundzwanzigste Vermögensverwaltungs -GmbH

 

Address: Dr. —Rudolf — Sachtleben — Str. 447198, DuisburgGermany

 

Fax: +49 (2066) 22-3201

 

Email: w.d.griebler@sachtleben.de

 

Attention: Wolf-Dieter Griebler

 

By: DR MARCUS BRUNE

 

 

**The****Original Borrowers**

 

Deukalion EinhundertvierundzwanzigsteVermögensverwaltungs - GmbH

 

By: DR MARCUS BRUNE

 

 

Sachtleben Chemie GmbH

 

By: DR MARTIN BURGHOLTE                         PROFWOLF-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

 

124

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Sachtleben Chemie GmbH

 

By: DR MARTIN BURGHOLTE                         PROFWOLF-DIETER GRIEBLER

 

 

White Pigments Holding Oy

 

By: UDO PINGER

 

 

Kemira Pigments Oy

 

By: HANNU VIROLAINEN

 

 

**The Arranger**

 

Merchant Banking, Skandinaviska Enskilda Banken AB (publ)

 

By: MALCOLM CROW                      ÅSASAMUELSSON

 

 

Nordea Bank Finland plc

 

By: ESA RAITANEN                           JUHA-MATTIPELTOMAA

 

 

**The Original Lenders**

 

Skandinaviska Enskilda Banken AB (publ)

 

By: MALCOLM CROW                      ÅSASAMUELSSON

 

 

Nordea Bank Finland Plc

 

By: ESA RAITANEN                           JUHA-MATTIPELTOMAA

 

125

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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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**SIGNATURES**

** **

**The****Company**

 

Deukalion Einhundertvierundzwanzigste Vermögensverwaltungs- GmbH

 

Address: Dr. — Rudolf — Sachtleben — Str. 447198, DuisburgGermany

 

Fax: +49 (2066) 22-3201

 

Email: w.d.griebler@sachtleben.de

 

Attention: Wolf-Dieter Griebler

 
| By:    | /s/ MARCUS BRUNE |   | /s/ UDO PINGER |
|--------|------------------|--------|----------------|
|   | Marcus Brune     |   | Udo Pinger     |

 

 

**The****Original Borrowers**

 

Deukalion EinhundertvierundzwanzigsteVermögensverwaltungs - GmbH

 
| By:    | /s/ MARCUS BRUNE |   | /s/ UDO PINGER |
|--------|------------------|--------|----------------|
|   | Marcus Brune     |   | Udo Pinger     |

 

 

Sachtleben Chemie GmbH

 
| By:    | /s/ WOLF-DIETER GRIEBLER |   | /s/ ANDREAS GRUENEWALD |
|--------|--------------------------|--------|------------------------|
|   | Wolf-Dieter Griebler     |   | Andreas Gruenewald     |

 

 

White Pigments Holding Oy

 
| By:    | /s/ CLEMONS ROLLMANN |   |   |
|--------|----------------------|--------|--------|
|   | Clemons Rollmann     |   |   |

 

 

Kemira Pigments Oy

 
| By:    | /s/ KLAUS KORHOPEN |   | /s/ TERHI ILVONEN |
|--------|--------------------|--------|-------------------|
|   | Klaus Korhopen     |   | Terhi Ilvonen     |

 

 

**The****Original Guarantors**

 

Deukalion EinhundertvierundzwanzigsteVermögensverwaltungs - GmbH

 
| By:    | /s/ MARCUS BRUNE |   | /s/ UDO PINGER |
|--------|------------------|--------|----------------|
|   | Marcus Brune     |   | Udo Pinger     |

 

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Sachtleben Chemie GmbH

 
| By:    | /s/ WOLF-DIETER GRIEBLER |   | /s/ ANDREAS GRUENEWALD |
|--------|--------------------------|--------|------------------------|
|   | Wolf-Dieter Griebler     |   | Andreas Gruenewald     |

 

 

White Pigments Holding Oy

 
| By:    | /s/ CLEMONS ROLLMANN |   |   |
|--------|----------------------|--------|--------|
|   | Clemons Rollmann     |   |   |

 

 

Kemira Pigments Oy

 
| By:    | /s/ KLAUS KORHOPEN |   | /s/ TERHI ILVONEN |
|--------|--------------------|--------|-------------------|
|   | Klaus Korhopen     |   | Terhi Ilvonen     |

 

**The Agent**

 

Merchant Banking, Skandinaviska Enskilda Banken AB (publ)

 
| Address:        | Skandinaviska Enskilda Banken AB (publ) |
|-----------------|-----------------------------------------|
|            | Rissneleden 110                         |
|            | SE-106 40 Stockholm                     |
|            |                                    |
| Attention:      | SCO                                     |
|            |                                    |
| E-mail:         | sco@seb.se                              |
|            |                                    |
| Fax number:     | + 46 8 611 03 84                        |
|            |                                    |
| With a copy to: |                                    |
| Address:        | Loan Agency                             |
|            | Capital Markets, SEB                    |
|            | Scandinavian House                      |
|            | 2 Cannon Street                         |
|            | London EC4M 6XX                         |
|            |                                    |
| E-mail:         | agency@seb.co.uk                        |
| Fax number:     | + 44 207 329 2304                       |

 
| By:    | /s/ MICHAEL I DICKS |   | /s/ ÅSA SAMUELSSON |
|--------|---------------------|--------|-------------------------|
|   | Michael I. Dicks    |   | Åsa Samuelsson     |

 

 

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