Exhibit
10.4


 


CONFORMED COPY


 


€330,000,000


 


FACILITY
AGREEMENT


 


 


Dated
17 June 2008


 


for


 


DEUKALION
EINHUNDERTVIERUNDZWANZIGSTE VERMÖGENSVERWALTUNGS - GMBH


 


 


arranged by


MERCHANT
BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) AND

NORDEA BANK FINLAND PLC


 


with


 


MERCHANT
BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


acting
as Agent


 


and


 


MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


acting
as Security Agent


 


and


 


MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


acting
as Issuing Bank


 

















 


CONTENTS


 


	
  CLAUSE

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1

  
	
   

  
	
  INTERPRETATION

  
	
  1.

  	
  Definitions and interpretation

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2

  
	
  THE  FACILITIES

  
	
   

  
	
  2.

  	
  The Facilities

  	
   

  	
  31

  
	
  3.

  	
  Purpose

  	
   

  	
  31

  
	
  4.

  	
  Conditions of Utilisation

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3

  
	
  UTILISATION

  
	
   

  
	
  5.

  	
  Utilisation - Loans

  	
   

  	
  34

  
	
  6.

  	
  Utilisation - Letters of Credit and Bank Guarantees

  	
   

  	
  35

  
	
  7.

  	
  Letters of Credit and Bank Guarantees

  	
   

  	
  38

  
	
  8.

  	
  Optional Currencies

  	
   

  	
  42

  
	
  9.

  	
  Ancillary Facilities

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4

  
	
  REPAYMENT, PREPAYMENT AND
  CANCELLATION

  
	
   

  
	
  10.

  	
  Repayment

  	
   

  	
  47

  
	
  11.

  	
  Prepayment and cancellation

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5

  
	
  COSTS OF UTILISATION

  
	
   

  
	
  12.

  	
  Interest

  	
   

  	
  55

  
	
  13.

  	
  Interest Periods

  	
   

  	
  57

  
	
  14.

  	
  Changes to the calculation of interest

  	
   

  	
  58

  
	
  15.

  	
  Fees

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6

  
	
  ADDITIONAL PAYMENT
  OBLIGATIONS

  
	
   

  
	
  16.

  	
  Tax gross up and indemnities

  	
   

  	
  61

  
	
  17.

  	
  Increased costs

  	
   

  	
  65

  
	
  18.

  	
  Other indemnities

  	
   

  	
  66

  
	
  19.

  	
  Mitigation by the Lenders

  	
   

  	
  67

  
	
  20.

  	
  Costs and expenses

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7

  
	
  GUARANTEE

  
	
   

  
	
  21.

  	
  Guarantee and indemnity

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8

  
	
  REPRESENTATIONS,
  UNDERTAKINGS AND EVENTS OF DEFAULT

  
	
   

  
	
  22.

  	
  Representations

  	
   

  	
  75

  
	
  23.

  	
  Information undertakings

  	
   

  	
  79

  
	
  24.

  	
  Financial covenants

  	
   

  	
  82

  
	
  25.

  	
  General undertakings

  	
   

  	
  88

  
	
  26.

  	
  Events of Default

  	
   

  	
  93

  



 


i

















 


	
  SECTION 9

  
	
  CHANGES TO PARTIES

  
	
   

  
	
  27.

  	
  Changes to the Lenders

  	
   

  	
  98

  
	
  28.

  	
  Changes to the Obligors

  	
   

  	
  101

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10

  
	
  THE FINANCE PARTIES

  
	
   

  
	
  29.

  	
  Role of the Agent, the Security Agent and the
  Arranger

  	
   

  	
  105

  
	
  30.

  	
  Parallel Debt

  	
   

  	
  110

  
	
  31.

  	
  Conduct of business by the Finance Parties

  	
   

  	
  111

  
	
  32.

  	
  Sharing among the Finance Parties

  	
   

  	
  111

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11

  
	
  ADMINISTRATION

  
	
   

  
	
  33.

  	
  Payment mechanics

  	
   

  	
  114

  
	
  34.

  	
  Set-off

  	
   

  	
  117

  
	
  35.

  	
  Notices

  	
   

  	
  117

  
	
  36.

  	
  Calculations and certificates

  	
   

  	
  119

  
	
  37.

  	
  Partial invalidity

  	
   

  	
  119

  
	
  38.

  	
  Remedies and waivers

  	
   

  	
  119

  
	
  39.

  	
  Amendments and waivers

  	
   

  	
  119

  
	
  40.

  	
  Counterparts

  	
   

  	
  120

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12

  
	
  GOVERNING LAW AND
  ENFORCEMENT

  
	
   

  
	
  41.

  	
  Governing law

  	
   

  	
  121

  
	
  42.

  	
  Enforcement

  	
   

  	
  121

  



 


THE SCHEDULES


 


	
  SCHEDULE

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1 The Original
  Parties

  	
   

  	
  122

  
	
  SCHEDULE 2 Conditions
  precedent

  	
   

  	
   

  
	
  SCHEDULE 3 Requests

  	
   

  	
   

  
	
  SCHEDULE 4 Mandatory Cost
  formulae

  	
   

  	
   

  
	
  SCHEDULE 5 Form of
  Transfer Certificate

  	
   

  	
   

  
	
  SCHEDULE 6 Form of
  Accession Letter

  	
   

  	
   

  
	
  SCHEDULE 7 Security Agency
  Provisions

  	
   

  	
   

  
	
  SCHEDULE 8 Form of
  Compliance Certificate

  	
   

  	
   

  
	
  SCHEDULE 9 Existing Security

  	
   

  	
   

  
	
  SCHEDULE 10 Timetables

  	
   

  	
   

  
	
  SCHEDULE 11 Form of
  Letter of Credit

  	
   

  	
   

  
	
  SCHEDULE 12 Form of Bank
  Guarantee

  	
   

  	
   

  
	
  SCHEDULE 13 Form of
  Resignation Letter

  	
   

  	
   

  



 


ii

















 


THIS AGREEMENT is dated
17 June 2008 and made between:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


IT IS AGREED as
follows:


 


SECTION 1


 


INTERPRETATION


 


1.                               DEFINITIONS AND INTERPRETATION


 


1.1                         Definitions


 


In this Agreement:


 


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


 


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


 


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


 


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


 


1

















 


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


 


“Additional Obligor” means an Additional
Borrower or an Additional Guarantor.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


For the purposes of
this definition:


 


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


 


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


 


2

















 


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


 


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


 


“Applicable Accounting Principles” means
GAAP and, in the case of the Company, practices and financial reference periods
used in the preparation of the Base Case.


 


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


 


“Availability Period” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Available Facility” means, in relation to a
Facility, the aggregate for the time 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 requested
by a Borrower and agreed by the Agent and the Issuing Bank.


 


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


 


“Base Currency” or “€” means euros.


 


3

















 


“Base Currency Amount” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


exceeds:


 


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


 


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


 


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


 


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


 


(a)                                 freely withdrawable on demand;


 


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


 


4

















 


or Sparkassen (Allgemeine Geschäftsbedingungen der Banken oder
Sparkassen) with whom any member of the Group maintains its banking
arrangements);


 


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


 


(d)                                capable of being remitted to an Obligor.


 


“Cash Equivalent Investments” means:


 


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


 


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


 


(c)                                 certificates of deposit or time deposits of any commercial bank (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 Quasi Security (other than pursuant to any Security
Document or any Permitted Security constituted by a lien arising 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 currency
and the proceeds of which are capable of being remitted to an Obligor.


 


“Cash Generated for Financing” has the
meaning given to it in Clause 24 (Financial
covenants).


 


“Clean Down Period” has the meaning given to
it in Clause 11.15 (Clean Down).


 


“Commencement Date” has the meaning given to
it in Clause 9.3 (Request for Ancillary
Facilities).


 


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


 


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


 


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


 


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


 


“Current Liabilities” means has the meaning
given to it in Clause 24 (Financial
covenants).


 


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


 


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


 


5

















 


“Default” means an Event of Default or any
event or circumstance specified in Clause 26 (Events
of Default) which would (with the expiry of a grace period, the
giving of notice, the making of any determination under the Finance Documents
or any combination of any of the foregoing) be an Event of Default.


 


“Disruption Event” means either or both of:


 


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


 


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


 


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


 


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


 


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


 


“EBITDA” has the meaning given to it in
Clause 24 (Financial covenants).


 


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


 


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


 


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


 


(c)                                 land (including land under water).


 


“Environmental Law” means all laws and
regulations of any relevant jurisdiction which:


 


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


 


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


 


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


 


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


 


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


 


(a)                                 the applicable Screen Rate; or


 


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


 


6

















 


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


 


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


 


“Event of Default” means any event or
circumstance specified as such in Clause 26 (Events
of Default).


 


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


 


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


 


“Facility” means Facility A or Facility B.


 


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


 


“Facility A Commitment” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


“Facility B Commitment” means:


 


(a)                                 in relation to an Original Lender, the amount in the Base Currency set
opposite its 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 this Agreement; and


 


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


 


to the extent not
cancelled, reduced or transferred by it under this Agreement (including a
reduction pursuant to Clause 9 (Ancillary
Facilities)).


 


7
















 


“Facility B Loan” means a loan made or to be
made under Facility B or the principal amount outstanding 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 or before the date it
becomes a Lender (or, following that date, by not less than five Business Days’
written notice) as the office or offices through which it will perform its
obligations under this Agreement.


 


“Fee Letter” means any letter or letters
dated on or about the date of this Agreement between, as the case may be, the
Arranger and the Company, the Agent and the Company, the Security Agent and the
Company or the Issuing Bank and the Company setting out any of the fees
referred to in Clause 15 (Fees).


 


“Finance Document” means this Agreement, the
Subordination Agreement, any Fee Letter, any Accession Letter, any Security
Document, any Ancillary Facility Document and any 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, the Issuing Bank or a
Lender.


 


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


 


(a)                                 moneys borrowed;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


institution in respect
of an underlying liability of an entity which is not a member of the Group
which liability would fall within one of the other paragraphs of this
definition; and


 


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


 


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


 


“Financial Year” has the meaning given to it
in Clause 24 (Financial covenants).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“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 such Obligor.


 


“GAAP” means generally accepted accounting
principles, standards and practices in the jurisdiction of incorporation of the
relevant member of the Group, including IFRS.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


“Group” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


“IFRS” means international accounting
standards within the meaning of the IAS Regulation 1606/2002 to the extent
applicable to the relevant financial statements.


 


“Information Memorandum” means the document
in the form approved by the Company concerning the Group which, at the Company’s
request and on its behalf, was prepared in relation to this transaction and
distributed by the Arranger to selected financial institutions before the date
of this Agreement.


 


“Insurance Proceeds” means any cash proceeds
(other than in relation to third party liabilities that are, or are intended to
be, applied to meet such liabilities or in relation to consequential loss
policies that are, or are intended to be, applied to cover operating 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 24 (Financial covenants).


 


“Interest Period” means, in relation to a
Loan, each period determined in accordance with Clause 13 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 12.3 (Default interest).


 


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


 


10

















 


respect of a Letter of
Credit or Bank Guarantee issued or to be issued pursuant to the terms of this
Agreement, the “Issuing Bank”
shall be the Issuing Bank which 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 or any other entity.


 


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


 


“JV Document” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“KPMG  Financial
Due Diligence Report” means the report prepared by KPMG 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 4 (Conditions
of Utilisation) or Clause 28 (Changes
to the Obligors).


 


“Legal Reservations” means:


 


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


 


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


 


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


 


11

















 


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


 


“Lender” means:


 


(a)                                  any Original Lender; and


 


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


 


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


 


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


 


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


 


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


 


“LIBOR” means, in relation to any Loan:


 


(a)                                 the applicable Screen Rate; or


 


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


 


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


 


“LMA” means the Loan Market Association.


 


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


 


“Majority Lenders” means:


 


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


 


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


 


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


 


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


 


12

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Material Subsidiary” means:


 


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


 


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


 


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


 


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


 


For the purposes of
this definition:


 


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


 


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


 


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


 


13

















 


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


 


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


 


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


 


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


 


“Net Interest Expenses” has the meaning
given to it in Clause 24 (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 a
member of the Group from a person which is not a member of the Group in
connection with the sale, transfer or other disposal by any member of the Group
of an asset (which is a sale, transfer or other disposal falling within
paragraphs (f) or (m) of the definition of Permitted Disposal) after
deducting:


 


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


 


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


 


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


 


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


 


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


 


“Obligor” means a Borrower or a Guarantor.


 


“Optional Currency” means a currency (other
than the Base Currency) which complies with the conditions set out in Clause
4.3 (Conditions relating to Optional
Currencies).


 


“Original Financial Statements” means:


 


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


 


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


 


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


 


“Original Obligor” means an Original
Borrower or an Original Guarantor.


 


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


 


14

















 


“Participating Member State” means any
member state of the European Communities that adopts or has adopted the euro as
its lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union.


 


“Party” means a party to this Agreement.


 


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


 


“Perfection Requirements” means the making
of the appropriate registrations, filings or notifications of or pursuant to
the Security Documents.


 


“Permitted Acquisition” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


(iii)                            the acquired company 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 of delivery of
a Compliance Certificate showing that the ratio of Net Debt (excluding the
amount of any proceeds of any new equity or Financial Indebtedness subordinated
to the Facilities on terms acceptable to the Majority Lenders (acting
reasonably) received by a member of the Group from a person which is not a
member of the Group and which is subsequently used to fund any such acquisition
(or associated costs and expenses) or to refinance Financial Indebtedness
remaining in any such acquired companies or businesses) on any Quarter Date to
EBITDA for the Relevant Period ending on that Quarter Date does not exceed
2.50:1.00:


 


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


 


15

















 


company or business at
the date of acquisition) when aggregated with the consideration (including
associated costs and expenses) for any other acquisition permitted under this
paragraph (d) (and any Financial Indebtedness remaining in any such
acquired companies or businesses at the date of acquisition) less the proceeds
of any new equity or Financial Indebtedness subordinated to the Facilities on
terms acceptable to the Majority Lenders (acting reasonably) received by a
member of the Group from a person which is not a member of the Group and used
to fund any such acquisition (or associated costs and expenses) or to refinance
Financial Indebtedness remaining in any such acquired companies or business
does not in any financial year of the Company exceed €10,000,000 (or its
equivalent in another currency or currencies); and


 


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


 


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


 


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


 


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


 


16

















 


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


 


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


 


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


 


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


 


(e)                                  an acquisition of shares or securities permitted pursuant to Clause
25.23 (Issue of shares); and


 


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


 


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


 


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


 


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


 


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


 


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


 


(e)                                 of assets to a Permitted Joint Venture;


 


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


 


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


 


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


 


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


 


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


 


17

















 


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


 


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


 


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


 


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


 


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


 


“Permitted Financial Indebtedness” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(h)                                any Financial Indebtedness arising under a Permitted Hedging
Transaction;


 


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


 


18

















 


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


 


(k)                                 the Reborrowing Loan;


 


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


 


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


 


“Permitted Guarantee” means:


 


(a)                                 any guarantee arising under any Finance Document;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


19
















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Permitted Hedging Transaction” means:


 


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


 


(b)                                interest rate hedging agreements and spot and forward delivery foreign
exchange contracts entered into in the ordinary course of business and not for
speculative purposes; and


 


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


 


“Permitted Joint Venture” means a Joint
Venture where:


 


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


 


20

















 


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


 


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


 


(d)                                the amount that any member of the Group invests in or pays to 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 any guarantee, Security or Quasi Security for the
obligations of, or any liability (whether actual or contingent and whether
present or future) of any member of the Group in respect of, the Joint Venture,
does not in any financial year of the Company exceed in aggregate €2,000,000
(or its equivalent in another currency or currencies).


 


“Permitted Loan” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(h)                                a loan, credit or other arrangement having a similar effect made by a
member of the Group to an employee 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 by members of the Group, does not at any time exceed €1,000,000
(or its equivalent in another currency or currencies);


 


21

















 


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


 


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


 


(k)                                 the US JV Loan; or


 


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


 


“Permitted Security” means:


 


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


 


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


 


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


 


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


 


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


 


	
  (i)

  	
   

  	
  the Security or Quasi Security was not created in
  contemplation of the acquisition of that asset by a member of the Group;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  the Security or Quasi Security is removed or
  discharged within three months of the date of acquisition of such asset;

  



 


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


 


	
  (i)

  	
   

  	
  the Security or Quasi Security was not created in
  contemplation of the acquisition of that company;

  



 


22

















 


	
  (ii)

  	
   

  	
  the principal amount secured has not increased in
  contemplation of or since the acquisition of that company; and

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  the Security or Quasi Security is removed or
  discharged within three months of that company becoming a member of the
  Group;

  



 


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


 


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


 


(i)                                    any netting or set-off arrangement entered into by a member of the Group
in the ordinary course of its banking arrangements for the purpose of netting
debit and credit balances of members of the Group, provided that (1) the
arrangement only permits credit balances of Obligors to be netted or set off
against debit balances of members of the Group which are not Obligors to the
extent that the aggregate 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 are permitted under paragraph (c) of the definition of
Permitted Loan, exceed €3,000,000 (or its equivalent in another currency or
currencies); and (2) if the arrangement gives rise to other Security or
Quasi Security over the assets of Obligors in support of liabilities of members
of the Group which are not Obligors, the aggregate amount of those liabilities
at any time, when aggregated with the amounts in paragraph (1) above, does
not exceed €2,000,000 (or its equivalent in another currency or currencies);


 


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


 


(k)                                 any lien arising 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;


 


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


 


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


 


“Permitted Transaction” means:


 


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


 


(b)                                the solvent liquidation or reorganisation of any member of the Group
which is not an Obligor so long as any payments or assets distributed as a
result of such liquidation or reorganisation are distributed to other members
of the Group; or


 


23

















 


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


 


	
  (i)

  	
   

  	
  all of the business and assets of Finnish Holdco and
  Kemira Pigments are retained by the surviving entity, being one of them;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  the surviving entity of that merger is liable for
  the obligations of the Obligor it has merged with; and

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  the Agent and the Security Agent are given ten
  Business Days’ notice by the Company of that proposed merger and the Security
  Agent, acting reasonably, is satisfied that the Finance Parties will enjoy
  the same or equivalent Security over the same assets and over the surviving
  entity and the shares in it.

  



 


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


 


“PwC Financial Due Diligence Report” means
the report prepared by PricewaterhouseCoopers Aktiengesellschaft
Wirtschaftsprüfungsgesellschaft in the Agreed Form.


 


“Qualifying Lender” has the meaning given to
it in Clause 16 (Tax gross-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:


 


	
  (a)

  	
   

  	
  sell, transfer or otherwise dispose of any of its
  assets on terms whereby they are or may be leased to or re-acquired by any
  other member of the Group;

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  sell, transfer or otherwise dispose of any of its
  receivables on recourse terms;

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  enter into any arrangement under which money or the
  benefit of a bank or other account may be applied, set-off or made subject to
  a combination of accounts; or

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  enter into any other preferential arrangement having
  a similar effect,

  



 


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


 


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


 


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


 


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


 


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


 


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


 


24

















 


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


 


“Relevant Interbank Market” means, in
relation to euro, the European interbank market  and, in relation to
any other currency, the London interbank market.


 


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


 


(a)                                 its
jurisdiction of incorporation;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Sachtleben Chemie” means Sachtleben Chemie
GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung) and
registered 


 


25

















 


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


 


“Screen Rate” means:


 


	
  (a)

  	
   

  	
  in relation to LIBOR, the British Bankers
  Association Interest Settlement Rate for the relevant currency and period;
  and

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  in relation to EURIBOR, the percentage rate per
  annum determined by the Banking Federation of the European Union for the
  relevant period,

  



 


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


 


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


 


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


 


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


 


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


 


“Shareholder Loan” means:


 


	
  (a)

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  a loan made available by Kemira Oy to Kemira
  Pigments maturing on 9 December 2008;

  
	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  a loan made available by Kemira Oy to Kemira
  Pigments maturing on 27 June 2008;

  
	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  a loan made available by Kemira Oy to Kemira
  Pigments maturing on 9 December 2008; and

  
	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  a loan made available by Kemira Oy to Kemira
  Pigments maturing on 27 June 2008.

  



 


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


 


26

















 


“Structuring Report” means the draft report
entitled “Project David Outline Structuring Steps – Working Draft” prepared by
Deloitte & Touche GmbH Wirtschaftsprüfungsgesellschaft 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 legal
entity:


 


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


 


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


 


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


 


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


 


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


 


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


 


“Syndication” means general syndication of
the Facilities.


 


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


 


“TARGET2” means the Trans-European Automated
Real-time Gross Settlement Express Transfer payment system which utilises a
single shared platform and which was launched on 19 November 2007.


 


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


 


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


 


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


 


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


 


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


 


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


 


27

















 


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


 


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


 


“Total Facility B Commitments” 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 any other form agreed
between the Agent and the Company.


 


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


 


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


 


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


 


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


 


“US JV Loan” means:


 


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


 


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


 


“Utilisation” means a Loan, a Letter of
Credit or a Bank Guarantee (but not a utilisation of an 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 (in relation to a letter
of credit or bank guarantee) a notice substantially in the form set out in Part III
of Schedule 3 (Requests).


 


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


 


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


 


1.2                         Construction


 


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


 


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


 


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


 


28

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


29
















 


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


 


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


 


and
the amount by which a Letter of Credit or Bank Guarantee is, 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 any
regulation, rule, official directive, request or guideline (whether or not
having the force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-regulatory or other
authority or organisation;


 


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


 


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


 


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


 


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


 


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


 


1.3                         Third Party 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 any term of this Agreement.


 


30

















 


SECTION 2


 


THE FACILITIES


 


2.                               THE FACILITIES


 


2.1                         The Facilities


 


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


 


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


 


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


 


2.2                         Finance Parties’ rights and obligations


 


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


 


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


 


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


 


3.                               PURPOSE


 


3.1                         Purpose


 


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


 


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


 


3.2                         Monitoring


 


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


 


4.                               CONDITIONS OF UTILISATION


 


4.1                         Initial conditions precedent


 


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


 


31

















 


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


 


4.2                         Further conditions precedent


 


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


 


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


 


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


 


(B)                            certifying that the ratio of (i) the aggregate of Net Debt on the
date of that Utilisation Request and the amount of the proposed Utilisation to (ii) EBITDA
for the 12 month period ending on the most recent month end or, if the
Utilisation Request is delivered within 7 Business Days of the start of a
month, for the 12 month period ending on the next-to-last month end does not
exceed 4.00:1.00, setting out (in reasonable detail) computations as to
compliance with that ratio;


 


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


 


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


 


4.3                         Conditions relating to Optional Currencies


 


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


 


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


 


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


 


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


 


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


 


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


 


32

















 


4.4                         Maximum number of Utilisations


 


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


 


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


 


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


 


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


 


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


 


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


 


33

















 


SECTION 3


 


UTILISATION


 


5.                               UTILISATION - LOANS


 


5.1                         Delivery of a Utilisation Request


 


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


 


5.2                         Completion of a Utilisation Request


 


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


 


	
  (i)

  	
   

  	
  it specifies that it is for a Loan;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  it identifies the Facility to be utilised;

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  the proposed Utilisation Date is a Business Day
  within the Availability Period applicable to that Facility;

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  the currency and amount of the Utilisation comply
  with Clause 5.3 (Currency and amount);

  
	
   

  	
   

  	
   

  
	
  (v)

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (vi)

  	
   

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

  



 


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


 


5.3                         Currency and amount


 


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


 


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


 


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


 


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


 


(iii)          if the 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 (Conditions relating to Optional
Currencies) or, if less, the Available Facility; and


 


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


 


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


 


34

















 


	
  Borrower

  	
   

  	
  Aggregate amount of Facility A Loans (€)

  	
   

  
	
  Sachtleben Chemie

  	
   

  	
  183,000,000

  	
   

  
	
  Kemira Pigments

  	
   

  	
  50,000,000

  	
   

  
	
  Finnish HoldCo

  	
   

  	
  67,000,000

  	
   

  



 


5.4                         Lenders’ participation


 


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


 


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


 


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


 


5.5                         Cancellation of Commitment


 


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


 


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


 


6.                               UTILISATION - LETTERS OF CREDIT AND BANK GUARANTEES


 


6.1                         General


 


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


 


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


 


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


 


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


 


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


 


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


 


(b)                         Any reference in this Agreement to:


 


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


 


35

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6.2                         Facility B


 


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


 


6.3                         Delivery of a Utilisation Request for Letters of Credit
or Bank Guarantees


 


A Borrower may request
a Letter of Credit or Bank Guarantee to be issued by delivery to the Agent of a
duly completed Utilisation Request substantially in the form of Part III
of Schedule 3 (Utilisation Request - Letters
of Credit and Bank Guarantees) not later than the Specified Time.


 


6.4                         Completion of a Utilisation Request for Letters of
Credit and Bank Guarantees


 


Each Utilisation
Request for a Letter of Credit or Bank Guarantee is irrevocable and will not be
regarded as having been duly completed unless:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


36

















 


6.5                         Currency and amount


 


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


 


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


 


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


 


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


 


(iii)          if the 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 (Conditions relating to Optional
Currencies) or, if less, the Available Facility,


 


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


 


6.6                         Issue of Letters of Credit or Bank Guarantees


 


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


 


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


 


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


 


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


 


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


 


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


 


6.7                         Renewal of a Letter of Credit or Bank Guarantees


 


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


 


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


 


37

















 


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


 


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


 


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


 


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


 


6.8                         Revaluation of Letters of Credit and Bank Guarantees


 


(a)                          If any Letter of Credit or Bank Guarantee is denominated in an 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
Bank Guarantee by notionally converting into the Base Currency the outstanding
amount of that Letter of Credit or Bank Guarantee on the basis of the Agent’s
Spot Rate of Exchange on the date of calculation.


 


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


 


7.                               LETTERS OF CREDIT AND BANK GUARANTEES


 


7.1                         Immediately payable


 


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


 


7.2                         Assignments and transfers


 


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


 


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


 


38

















 


7.3                         Fee payable in respect of Letters of Credit and Bank
Guarantees


 


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


 


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


 


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


 


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


 


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


 


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


 


7.4                         Claims under a Letter of Credit or Bank Guarantee


 


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


 


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


 


(c)                          Each Borrower acknowledges that the Issuing Bank:


 


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


 


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


 


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


 


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


 


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


 


39

















 


7.5                         Indemnities


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


40

















 


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


 


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


 


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


 


(vii)         any insolvency or
similar proceedings.


 


7.6                         Rights of contribution


 


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


 


7.7                         Role of the Issuing Bank


 


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


 


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


 


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


 


(d)                         The Issuing Bank may rely on:


 


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


 


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


 


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


 


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


 


(g)                         The Issuing Bank is not responsible for:


 


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


 


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


 


41
















 


7.8                         Exclusion of liability


 


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


 


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


 


7.9                         Credit appraisal by the Lenders


 


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


 


7.10                   Address for notices


 


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


 


7.11                   Amendments and Waivers


 


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


 


8.                               OPTIONAL CURRENCIES


 


8.1                         Selection of currency


 


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


 


8.2                         Unavailability of a currency


 


If before the Specified Time on any Quotation
Day:


 


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


 


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


 


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


 


42

















 


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


 


9.                               ANCILLARY FACILITIES


 


9.1                         Establishment of Ancillary Facilities


 


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


 


9.2                         Types of Ancillary Facility


 


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


 


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


 


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


 


9.3                         Request for Ancillary Facilities


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(vii)                          the currency or currencies (which must comply with
paragraph (c) below) in which utilisations 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 details in relation to that Ancillary
Facility as the Agent may reasonably require.


 


43

















 


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


 


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


 


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


 


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


 


9.4                         Grant of Ancillary Facility


 


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


 


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


 


(b)                                the proposed Ancillary Commitment under that Ancillary
Facility will not, when aggregated with the Ancillary Commitments under all
other Ancillary Facilities in effect on that Commencement Date, exceed the
Total Ancillary Limit; and


 


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


 


9.5                         Adjustments to Facility B Commitment


 


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


 


(b)                         If and to the extent that:


 


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


 


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


 


the Facility B Commitment of the relevant
Lender will immediately be increased by an 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).


 


9.6                         Terms of Ancillary Facilities


 


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


 


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


 


44

















 


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


 


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


 


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


 


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


 


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


 


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


 


9.7                         Limits on Ancillary Facilities


 


The Company shall ensure that:


 


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


 


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


 


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


 


9.8                         Voluntary cancellation of Ancillary
Facilities


 


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


 


9.9                         Notice in respect of Ancillary
Facilities


 


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


 


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


 


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


 


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


 


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


 


45

















 


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


 


9.10                   Ancillary Outstandings


 


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


 


46

















 


SECTION 4


 


REPAYMENT, PREPAYMENT AND CANCELLATION


 


10.                         REPAYMENT


 


10.1                   Repayment of Facility A Loans


 


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


 


	
  Facility A Repayment Date

  	
   

  	
  Facility A
  Repayment Instalment (€)

  	
   

  
	
  12 months after the date of this Agreement

  	
   

  	
  5,000,000

  	
   

  
	
  18 months after the date of this Agreement

  	
   

  	
  5,000,000

  	
   

  
	
  24 months after the date of this Agreement

  	
   

  	
  10,000,000

  	
   

  
	
  30 months after the date of this Agreement

  	
   

  	
  10,000,000

  	
   

  
	
  36 months after the date of this Agreement

  	
   

  	
  10,000,000

  	
   

  
	
  42 months after the date of this Agreement

  	
   

  	
  15,000,000

  	
   

  
	
  48 months after the date of this Agreement

  	
   

  	
  15,000,000

  	
   

  
	
  54 months after the date of this Agreement

  	
   

  	
  15,000,000

  	
   

  
	
  60 months after the date of this Agreement

  	
   

  	
  215,000,000

  	
   

  



 


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


 


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


 


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


 


10.2                   Repayment of Facility B Loans


 


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


 


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


 


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


 


47

















 


10.3                   Repayment of Ancillary Facilities


 


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


 


11.                         PREPAYMENT AND CANCELLATION


 


11.1                   Illegality in relation to a Lender or the Issuing Bank


 


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


 


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


 


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


 


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


 


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


 


11.2                   Illegality in relation to an Ancillary Lender


 


If it becomes unlawful in any applicable
jurisdiction for an Ancillary Lender to perform any of its obligations as
contemplated by this Agreement or any Ancillary Facility Document or to fund or
maintain its participation in any utilisation under any Ancillary Facility:


 


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


 


(b)                                upon the Agent notifying the Company:


 


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


 


(ii)                               each Borrower shall use its best endeavours to procure the release of
any outstanding letter of credit, guarantee or other instrument issued by that
Ancillary Lender in respect of that Borrower under each Ancillary Facility made
available by that Ancillary Lender and repay all amounts, if any, payable under
each such Ancillary Facility on the earlier of the next date on which any
payment or repayment is due under that facility occurring after the Agent has
notified the Company or the date specified by the Ancillary Lender in the
notice delivered to 


 


48

















 


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


 


11.3                   Change of control


 


(a)                          If a Change of Control Event occurs:


 


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


 


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


 


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


 


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


 


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


 


49

















 


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


 


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


 


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


 


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


 


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


 


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


 


11.4                   Voluntary cancellation


 


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


 


11.5                   Mandatory prepayment - Net Sale Proceeds


 


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


 


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


 


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


 


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


 


11.6                   Application of Net Sale Proceeds prepayment


 


(a)                          In this Clause 11.6, “Receipt Date” means the date on which any Net Sale Proceeds to
which paragraph (a) of Clause 11.5 (Mandatory
prepayment – Net Sale Proceeds) applies (the “Relevant Net Sale Proceeds) have been
received by any member of the Group.


 


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


 


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


 


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


 


50

















 


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


 


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


 


(f)                            Any prepayment under this Clause 11.6 shall satisfy
the obligations under Clause 10.1 (Repayment
of Facility A Loans) in inverse chronological order.


 


11.7                   Mandatory prepayment - Insurance Proceeds


 


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


 


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


 


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


 


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


 


11.8                   Application of Insurance Proceeds prepayment


 


(a)                          In this Clause 11.8, “Receipt Date” means the date on which any Insurance Proceeds
to which paragraph (a) of Clause 11.7 (Mandatory
prepayment - Insurance Proceeds) applies (the “Relevant Insurance Proceeds”) have been
received by any member of the Group.


 


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


 


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


 


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


 


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


 


(f)                            Any prepayment under this Clause 11.8 shall satisfy
the obligations under Clause 10.1 (Repayment
of Facility A Loans) in inverse chronological order.


 


11.9                   Excluded proceeds


 


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


 


51

















 


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


 


11.10             Restriction on upstream payments


 


(a)         If there 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 to effect such prepayment, moneys need to be upstreamed or
otherwise transferred from one member of the Group to another member of the
Group and:


 


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


 


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


 


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


 


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


 


11.11             Voluntary prepayment of Facility A Loans


 


(a)                          The Borrower to which a Facility A Loan has been made
may, if it gives the Agent not less than 5 Business Days’ (or such shorter
period as the Majority Lenders may 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 the Facility A Loan by a minimum amount of €5,000,000
and integral multiples of €1,000,000 thereafter.)


 


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


 


(c)                          Any prepayment under this Clause 11.11 shall satisfy
the obligations under Clause 10.1 (Repayment
of Facility A Loans) in inverse chronological order.


 


52

















 


11.12             Voluntary prepayment of Facility B Utilisations


 


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


 


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


 


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


 


11.13             Right of repayment and cancellation in relation to a single
Lender, Ancillary Lender or Issuing Bank


 


(a)                          If:


 


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


 


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


 


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


 


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


 


(ii)                                 (if such circumstances relate to the Issuing Bank) of repayment of any
outstanding Letter of Credit or Bank Guarantee issued by it and cancellation of
its appointment as an Issuing Bank under this Agreement in relation to any
Letters of Credit or Bank Guarantees to be issued in the future; or


 


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


 


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


 


(c)                          On the last day of each Interest Period which ends
after the Company has given notice under paragraph (a) above (or, if
earlier, the date specified by the Company in that notice), each Borrower to
which a Utilisation or utilisation of an Ancillary Facility is outstanding
shall repay that Lender’s participation in that Utilisation or utilisation of
an Ancillary Facility granted by that Ancillary Lender.


 


53
















 


11.14            Restrictions


 


(a)         Any notice of cancellation or prepayment given by any
Party under this Clause 11 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or dates upon
which the relevant cancellation or prepayment is to be made and the amount of
that cancellation or prepayment.


 


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


 


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


 


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


 


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


 


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


 


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


 


11.15    Clean Down


 


The
Company shall:


 


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


 


(i)                                 all Facility B Loans; and


 


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


 


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


 


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


 


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


 


54

















 


SECTION 5


 


COSTS OF
UTILISATION


 


12.        INTEREST


 


12.1      Calculation of interest


 


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


 


(a)                            Margin;


 


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


 


(c)                            Mandatory Cost, if any.


 


12.2      Payment of interest


 


The
Borrower to which a Loan has been made shall pay 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 six monthly intervals after the first
day of the Interest Period).


 


12.3      Default interest


 


(a)        If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the overdue amount
from the due date up to 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 rate which would have been payable if the overdue amount had,
during the period of non-payment, constituted a Loan in the currency of the
overdue amount for successive Interest Periods, each of a duration selected by
the Agent (acting reasonably).  Any
interest accruing under this Clause 12.3 shall be immediately payable by the
Obligor on demand by the Agent.


 


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


 


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


 


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


 


	
  (c)

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

  
	
   

  	
   

  
	
  12.4

  	
  Notification of rates of interest

  
	
   

  	
   

  
	
   

  	
  The
  Agent shall promptly notify the Lenders and the relevant Borrower of the
  determination of a rate of interest under this Agreement.

  
	
   

  	
   

  
	
  12.5

  	
  Adjustment of Margin

  
	
   

  	
   

  
	
  (a)

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

  



 


55

















 


the ratio of Net Debt to EBITDA as shown in the
then most recent Compliance Certificate (and the financial statements with
which it is required by this Agreement to be delivered) received by the Agent,
to equal the rate per annum specified opposite the relevant range set out 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 adjustment shall be made to the Margin under
paragraph (a) above until receipt by the Agent of the first Compliance
Certificate (and the financial statements with which it is required by this
Agreement to be delivered) for the Relevant Period ending 31 December 2008.


 


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


 


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


 


56

















 


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


 


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


 


13.                        INTEREST PERIODS


 


13.1                  Selection of Interest Periods


 


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


 


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


 


(c)                           If a Borrower (or the Company) fails to deliver a
Selection Notice to the Agent in accordance with paragraph (b) above, the
relevant Interest Period will, subject to Clause 13.2 (Changes to Interest Periods),  be one Month.


 


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


 


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


 


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


 


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


 


57

















 


13.2                  Changes to Interest Periods


 


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


 


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


 


13.3                  Non-Business Days


 


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


 


13.4                  Consolidation and division of Facility A Loans


 


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


 


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


 


(ii)                                   end on the same date; and


 


(iii)                                are made to the same Borrower,


 


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


 


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


 


14.                        CHANGES TO THE CALCULATION OF
INTEREST


 


14.1                  Absence of quotations


 


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


 


14.2                  Market disruption


 


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


 


	
   

  	
  (i)

  	
  the
  Margin;

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  the
  rate notified to the Agent by that Lender as soon as practicable and in any
  event before interest is due to be paid in respect of that Interest Period,
  to be that which

  



 


58

















 


	
   

  	
   

  	
  expresses
  as a percentage rate per annum the cost to that Lender of funding its
  participation in that Loan from whatever source it may reasonably select; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  the
  Mandatory Cost, if any, applicable to that Lender’s participation in the
  Loan.

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  In
  this Agreement “Market Disruption Event” means:

  
	
   

  	
   

  	
   

  
	
   

  	
  (i)

  	
  at
  or about noon on the Quotation Day for the relevant Interest Period the
  Screen Rate is not available and none or only one of the Reference Banks
  supplies a rate to the Agent to determine LIBOR or, if applicable, EURIBOR
  for the relevant currency and Interest Period; or

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

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

  



 


14.3                  Alternative basis of interest or funding


 


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


 


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


 


14.4                  Break Costs


 


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


 


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


 


15.                        FEES


 


15.1                  Commitment fee


 


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


 


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


 


15.2                  Arrangement fee


 


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


 


59

















 


	
  15.3

  	
  Agency fee

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
  15.4

  	
  Security Agency fee

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
  15.5

  	
  Issuing Bank fee

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
  15.6

  	
  Ancillary Facility fees

  
	
   

  	
   

  
	
   

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

  



 


60

















 


SECTION 6


 


ADDITIONAL
PAYMENT OBLIGATIONS


 


16.                        TAX GROSS UP AND INDEMNITIES


 


16.1                  Definitions


 


“Finnish Qualifying Lender” means a Lender
which is:


 


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


 


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


 


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


 


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


 


“Qualifying Lender” means :


 


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


 


(A)                          lending through a Facility Office in Germany;


 


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


 


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


 


(ii)                                 a Finnish Qualifying Lender; or


 


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


 


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


 


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


 


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


 


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


 


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


 


“Treaty Lender” means a Lender which:


 


61

















 


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


 


(ii)                                 does not carry on a business in the Federal Republic of Germany or the
jurisdiction of incorporation of the relevant Borrower through a permanent
establishment with 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 the jurisdiction of incorporation of
the relevant Borrower which makes provision for full exemption for tax imposed
by the Federal Republic of Germany or the jurisdiction of incorporation of the
relevant Borrower on interest.


 


(b)        Unless a contrary indication appears, in this Clause 16 a
reference to “determines” or “determined” means a determination made in the
absolute discretion of the person making the determination.


 


16.2                  Tax gross-up


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


62

















 


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


 


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


 


16.3                  Tax indemnity


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)                          A Protected Party making, or intending to make, a
claim under paragraph (a) above shall 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)                         A Protected Party shall, on receiving a payment from
an Obligor under this Clause 16.3, notify the Agent.


 


63
















 


16.4                  Tax Credit


 


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


 


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


 


(b)                           that Finance Party has (directly or on an affiliated
group basis) obtained, utilised and retained that Tax Credit,


 


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


 


16.5                  Stamp taxes


 


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


 


16.6                  Value added tax


 


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


 


(b)                           If VAT is chargeable on any supply made by any Finance
Party (the “Supplier”) to any
other Finance Party (the “Recipient”)
under a Finance Document, and any Party (the “Relevant
Party”) is required by the terms of any Finance Document to pay an
amount equal to the consideration for such supply to the Supplier (rather than
being required to reimburse the Recipient in respect of that consideration),
such Party shall also pay to the Supplier (in addition to and at the same time
as paying such amount) an amount equal to the amount of such VAT. The Recipient
will promptly pay to the Relevant Party an amount equal to any credit or
repayment from the relevant tax authority which it reasonably determines
relates to the VAT chargeable on that supply.


 


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


 


16.7                  German Earnings Stripping Rules


 


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


 


64

















 


Business
Tax Reform Act 2008 (Unternehmensteuerreformgesetz
2008, published in the Federal Gazette, BGBI. I 2007, 1912 et seq.), with
regard to the application of the equity escape clause, the Finance Parties
shall, upon receipt of a request of the relevant Borrower (containing a
detailed proposal for the requested assistance) enter into good faith
negotiations as to what extent it is reasonably practical for the Finance
Parties to assist the Borrower in this respect. For the avoidance of doubt, no
Finance Party shall be obliged to release any Security, change this Agreement
or disclose information which is confidential under applicable statutory or
contractual banking secrecy rules.


 


17.                        INCREASED COSTS


 


17.1                  Increased costs


 


(a)                           Subject to Clause 17.3 (Exceptions) the Company shall, within three Business Days of
a demand by the Agent, pay for the account of a Finance Party the amount of any
Increased Costs incurred by that Finance Party or any of its Affiliates as a
result of (i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or regulation or (ii) compliance
with any law or regulation made after the date of this Agreement.


 


(b)                          In this Agreement “Increased
Costs” means:


 


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


 


(ii)                                   an additional or increased cost; or


 


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


 


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


 


17.2                  Increased cost claims


 


(a)                           A Finance Party intending to make a claim pursuant to
Clause 17.1 (Increased costs),
shall notify the Agent of the event giving rise to the claim, following which
the Agent shall promptly notify the Company.


 


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


 


17.3                  Exceptions


 


(a)                           Clause 17.1 (Increased
costs) does not apply to the extent any Increased Cost is:


 


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


 


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


 


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


 


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


 


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(b)        In this Clause 17.3, a reference to a “Tax Deduction” has the
same meaning given to the term in Clause 16.1 (Definitions).


 


18.                        OTHER INDEMNITIES


 


18.1                  Currency indemnity


 


(a)                           If any sum due from an Obligor under the Finance
Documents (a “Sum”), or any order,
judgment or award given or made in relation to a Sum, has to be converted from
the currency (the “First Currency”)
in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:


 


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


 


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


 


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


 


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


 


18.2                  Other indemnities


 


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


 


	
   

  	
  (a)

  	
  the
  occurrence of any Event of Default;

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  a
  failure by an Obligor to pay any amount due under a Finance Document on its
  due date, including without limitation, any cost, loss or liability arising
  as a result of Clause 32 (Sharing among
  the Finance Parties);

  
	
   

  	
   

  	
   

  
	
   

  	
  (c)

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

  
	
   

  	
   

  	
   

  
	
   

  	
  (d)

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

  



 


18.3                  Indemnity to the Agent and the Security Agent


 


The Company shall promptly indemnify the Agent
and the Security Agent against any cost, loss or liability incurred by the
Agent or the Security Agent (acting reasonably) as a result of:


 


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


 


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


 


19.                        MITIGATION BY THE LENDERS


 


19.1                   Mitigation


 


(a)                          Each Finance Party shall, in consultation with the
Company, take all reasonable steps to mitigate any circumstances which arise
and which would result in any amount becoming payable under or pursuant to, or
cancelled pursuant to, any of Clause 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 (but not limited to) transferring
its rights and obligations under the Finance Documents to another Affiliate or
Facility Office.


 


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


 


19.2                   Limitation of liability


 


(a)                          The Company shall indemnify each Finance Party for all
costs and expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 19.1 (Mitigation).


 


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


 


20.                         COSTS AND EXPENSES


 


20.1                   Transaction expenses


 


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


 


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


 


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


 


20.2                   Amendment costs


 


If (a) an
Obligor requests an amendment, waiver or consent 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 Security Agent for the amount of all costs and
expenses (including legal fees) reasonably incurred by the Agent or the
Security Agent in responding to, evaluating, negotiating or complying with that
request or requirement.


 


20.3                   Enforcement costs


 


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


 


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20.4                  Security Agent expenses


 


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


 


20.5                  Undertaking to pay


 


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


 


(i)                                      any Finance Document;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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SECTION 7


 


GUARANTEE


 


21.                        GUARANTEE AND INDEMNITY


 


21.1                  Guarantee and indemnity


 


Each
Guarantor irrevocably and unconditionally jointly and severally:


 


(a)                                  guarantees to each Finance Party punctual performance
by each Borrower of all that Borrower’s obligations under the Finance
Documents;


 


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


 


(c)                                  agrees with each Finance Party that if, for any
reason, any amount claimed by a Finance Party under this Clause 21 is not recoverable
on the basis of a guarantee, 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 amount when due under or in connection with any Finance Document.
The amount payable by a Guarantor under this indemnity will not exceed the
amount it would have had to pay under this Clause 21 if the amount claimed had
been recoverable on the basis of a guarantee.


 


21.2                  Continuing guarantee


 


This
guarantee is a continuing guarantee and will extend to the ultimate balance of
sums payable by any Obligor under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part.


 


21.3                  Reinstatement


 


If as
a result of insolvency or any similar event:


 


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


 


(b)                                  any discharge or arrangement (whether in respect of
the obligations of any Obligor or any security for those obligations or
otherwise) is made in whole or in part on the basis of any payment, security or
other thing which is avoided, reduced or must be restored,


 


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


 


(ii)                               each Finance Party shall be entitled to recover the
value or amount of that payment or security from each Obligor, as if the
payment, discharge or arrangement had not occurred.


 


21.4                  Waiver of defences


 


The
obligations of each Guarantor under this Clause 21 will not be affected by an
act, omission, matter or thing which, but for this Clause, would reduce,
release or prejudice any of its obligations under this Clause 21 (without
limitation and whether or not known to it or any Finance Party) including:


 


(a)                                   any time, waiver or consent granted to, or composition
with, any Obligor or other person;


 


69

















 


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


 


(c)                                   the taking, variation, compromise, exchange, renewal
or release of, or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, any Obligor or other person or any
non-presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full value of any
security;


 


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


 


(e)                                   any amendment, novation, supplement, extension,
restatement (however fundamental and whether or not more onerous) or
replacement of any Finance Document or any other document or security,
including any change in the purpose of, any extension of or any increase in any
facility or the addition of any new facility under any Finance Document or
other document or security;


 


(f)                                     any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any other document or
security; or


 


(g)                                  any insolvency or similar proceedings.


 


21.5                  Immediate recourse


 


Each
Guarantor waives any right it may have of first requiring any Finance Party (or
any trustee or agent on its behalf) to proceed against or enforce any other
rights or security or claim payment from any person before claiming from that
Guarantor under this Clause 21.  This
waiver applies irrespective of any law or any provision of a Finance Document
to the contrary.


 


21.6                  Appropriations


 


Until
all amounts which may be or become payable by the Obligors under or in
connection with the Finance Documents have been irrevocably paid in full, each
Finance Party (or any trustee or agent on its behalf) may:


 


(a)                                  refrain from applying or enforcing any other moneys,
security or rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and enforce the same
in such manner and order as it sees fit (whether against those amounts or
otherwise) and no Guarantor shall be entitled to the benefit of the same; and


 


(b)                                 hold in an interest-bearing suspense account any
moneys received from any Guarantor or on account of any Guarantor’s liability
under this Clause 21.


 


21.7                  Deferral of Guarantors’ rights


 


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


 


(a)                                   to be indemnified by an Obligor;


 


70

















 


(b)                                  to claim any contribution from any other guarantor of
any Obligor’s obligations under the Finance Documents; and/or


 


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


 


If a
Guarantor receives any benefit, payment or distribution in relation to such
rights it shall hold that benefit, payment or distribution to the extent
necessary to enable all amounts which may be or become payable to the Finance
Parties by the Obligors under or in connection with the Finance Documents to be
repaid in full on trust for the Finance Parties and shall promptly pay or
transfer the same to the Agent or as the Agent may direct for application in
accordance with Clause 33 (Payment mechanics)
of this Agreement.


 


21.8                  Additional security


 


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


 


21.9                  Release of Guarantors’ right of contribution


 


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


 


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


 


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


 


21.10            Preservation of stated share capital of a German Guarantor


 


(a)                          To the extent that the guarantee created under this
Clause 21 (the “Guarantee”)
is granted by a Guarantor incorporated in Germany as a limited liability
company (GmbH) (each a “German Guarantor”) and the Guarantee of the
German Guarantor guarantees amounts


 


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


 


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


 


71

















 


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


 


(b)                           To the extent that the demand under the Guarantee
against a German Guarantor is made in respect of amounts in relation to which
the conditions pursuant to paragraph (a) are fulfilled, the relevant
German Guarantor’s liability shall be limited as follows:


 


(i)                                      Subject to sub-paragraphs (iii) to (viii) below,
the Agent shall not be entitled to enforce the Guarantee to the extent that
such enforcement has the effect of


 


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


 


(B)                             (if its Net Assets are already lower than its stated
share capital) causing such amount to be further reduced,


 


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


 


(ii)                                   The value of the Net Assets shall be determined in accordance with GAAP
consistently applied by the German Guarantor in preparing its unconsolidated
balance sheets (Jahresabschluss
according to § 42 GmbH-Act, §§ 242, 264 HGB) in the previous years,
save that


 


(A)                           the amount of any increase of the stated share capital
(Stammkapital) of the German
Guarantor registered after the date of this Agreement without the prior written
consent of the Agent shall be deducted from the relevant stated share capital;


 


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


 


(C)                             loans and other liabilities incurred in violation of
the provisions of this Agreement shall be disregarded to the extent such
violation is caused by wilful misconduct or gross negligence of the managing
directors of the relevant Guarantor.


 


(iii)                                The limitations set out in sub-paragraph (i) above shall only
apply if and to the extent that the managing director(s) (Geschäftsführer) on behalf of the
respective German Guarantor have confirmed in writing to the Agent within
15 calendar days following the Agent’s demand under the Guarantee, to what
extent the demanded payment fulfils the conditions pursuant to paragraph (a) and
would cause its Net Assets to fall below its stated share capital (Stammkapital) or, if the Net Assets are
already less than the stated share capital (Stammkapital),
would cause such amount to be further reduced (the “Management Determination”).


 


(iv)                               If the Agent disagrees with the Management
Determination, the Agent shall nevertheless be entitled to enforce the
Guarantee up to such amount, which is undisputed between 


 


72

















 


itself
and the relevant German Guarantor in accordance with the provisions of
paragraph (iii) above. In relation to the amount which is disputed,
the Agent and such German Guarantor shall instruct a firm of auditors of
international 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 of
available Net Assets (the “Auditor’s
Determination”). If the Agent and the German Guarantor do not agree
on the appointment of a joint auditor within 5 Business Days from the date the
Agent has disputed the Management Determination, the Agent shall be entitled to
appoint auditors of international standing and reputation. The amount
determined as available in the Auditor’s Determination shall be (except for
manifest error) binding for all Parties. The costs of the Auditor’s
Determination shall be borne by the Company and shall be taken into account in
the calculation of Net Assets.


 


(v)                                  If, and to the extent that, the Guarantee has been
enforced without regard to the limitation set forth in sub-paragraph (i) because
(A) the Management Determination was not delivered within the relevant
time frame or (B) the amount of the available Net Assets pursuant to the
Auditor’s Determination is lower than the amount stated in the Management
Determination, the Finance Parties 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 extent already paid to the Finance Parties) in the case
of (A) above, which is necessary to maintain such German Guarantor’s
stated share capital (Stammkapital),
and in the case of (B) above up to and including the amount calculated in
the Auditor’s Determination calculated as of the date the demand under the
Guarantee was made and in accordance with sub-paragraphs (i) and (ii) above,
provided such demand for repayment is made to the Agent within 6 months (Ausschlussfrist) from the date the
Guarantee has been enforced.


 


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


 


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


 


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


 


73
















 


(viii)     If the German Guarantor demonstrates that, at the time of enforcement,
it is obliged to file for the commencement of insolvency proceedings for reason
of over-indebtedness (Überschuldung),
then for the determination of its Net Assets the lower of the amount of net
assets 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 balance sheet showing an over-indebtedness,
however, the continuation of the enterprise shall not be taken as a basis if
according to the circumstances such continuation is not deemed highly likely (negative Fortführungsprognose).
Sub-paragraphs (iii) to (vii) above shall apply mutatis mutandis in
relation to the German Guarantor invoking its over-indebtedness (Überschuldung).


 


(c)         This Clause 21.10 (Preservation of
stated share capital of a German Guarantor) shall apply mutatis mutandis if the Guarantee is
granted by a Guarantor incorporated as a limited liability partnership (GmbH & Co. KG) in relation to the
limited liability company as general partner (Komplementär)
of such Guarantor.


 


21.11            Limitation
applicable to Finnish Guarantors


 


No obligations of any Guarantor incorporated in
Finland under this Clause 21 shall extend to guarantee the obligations of any
Borrower to the extent, and only to the extent, it would constitute (i) unlawful
distribution of assets within the meaning of Chapter 13, Section 1 of the
Finnish Companies Act (osakeyhtiölaki
624/2006, as amended or re-enacted from time to time), or (ii) unlawful
financial assistance within the meaning of Chapter 13, Section 10 of the
Finnish Companies Act.


 


74

















 


SECTION 8


 


REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT


 


22.                        REPRESENTATIONS


 


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


 


22.1                  Status


 


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


 


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


 


22.2                  Binding
obligations


 


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


 


22.3                  Non-conflict
with other obligations


 


The entry into and
performance by it of, and the transactions contemplated by, the Finance
Documents do not and will not conflict with:


 


(a)                                   any law or regulation applicable to it;


 


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


 


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


 


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


 


22.4                  Power
and authority


 


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


 


22.5                  Validity
and admissibility in evidence


 


All Authorisations
required:


 


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


 


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


 


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


 


75

















 


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


 


22.6                  Governing
law and enforcement


 


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


 


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


 


22.7                  Deduction
of Tax


 


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


 


22.8                  No
filing or stamp taxes


 


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


 


22.9                  No
default


 


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


 


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


 


22.10            Information
Memorandum


 


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


 


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


 


(c)                            Nothing has occurred or been omitted from the Information Memorandum and
no information has been given or withheld that results in the information
contained in the Information Memorandum being untrue or misleading in any
material respect.


 


22.11            Financial
statements


 


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


 


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


 


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


 


76

















 


22.12            Pari
passu ranking


 


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


 


22.13            No
proceedings pending or threatened


 


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


 


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


 


22.14            Environmental
laws and licences


 


It and each of its
Subsidiaries has:


 


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


 


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


 


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


 


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


 


22.15            Environmental
releases


 


No:


 


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


 


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


 


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


 


22.16            Solvency


 


No:


 


(a)                                   corporate action, 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 its
Subsidiaries.


 


22.17            Security


 


(a)                            Subject to any applicable Perfection Requirements, each Security
Document creates (or, once entered into, will create) 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 the ranking and priority it is
expressed to have.


 


77

















 


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


 


22.18            Legal
and beneficial ownership


 


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


 


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


 


22.19            Assets


 


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


 


22.20            JV
Documents


 


(a)                            The JV Documents:


 


	
  (i)

  	
   

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

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  are or, on the date of the first Utilisation
  Request, will be in full force and effect; and

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  have not been amended from the form in which they
  were delivered or waived (in whole or in part) and no consent has been given
  thereunder, save for any which do not materially and adversely affect the
  interests of the Lenders or have been approved in writing by the Agent.

  



 


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


 


22.21            Pensions


 


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


 


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


 


22.22            Insurances


 


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


 


78

















 


(b)                           No event or circumstance 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 such insurance where such event, circumstance or failure
would reasonably be expected to have a Material Adverse Effect.


 


22.23            Repetition


 


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


 


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


 


(b)                                  in the case of an Additional Obligor, the day on which the company
becomes (or it is 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 each Obligor on the date on which the Information
Memorandum is approved by the Company and on the Syndication Date subject to,
in each case, any disclosures made by the Company prior thereto.


 


23.                        INFORMATION UNDERTAKINGS


 


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


 


23.1                  Financial
statements


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


23.2                  Compliance
Certificate


 


(a)                            The Company shall supply to the Agent, with each set of financial
statements delivered pursuant to paragraph (a)(i) or (b)(i) of Clause
23.1 (Financial statements), a
Compliance Certificate setting out (in reasonable detail) computations as to
compliance with Clause 24 (Financial
covenants) as at the date as at which those financial statements
were drawn up.


 


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


 


79

















 


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


 


(c)         Each Compliance Certificate shall be signed by two directors of the
Company and, if required to be delivered with the financial statements
delivered pursuant to paragraph (a)(i) of Clause 23.1 (Financial statements), shall be reported
on by the Company’s auditors in the form reasonably required by the Agent.


 


23.3                  Requirements
as to financial statements


 


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


 


(b)        The Company shall procure that each set of financial statements
delivered pursuant to Clause 23.1 (Financial
statements) is prepared using the Applicable Accounting Principles,
unless, in relation to any set of financial statements, it notifies the Agent
that there has been a change in GAAP or the relevant accounting practices or
reference periods and its auditors (or, if appropriate, the auditors of the
Obligor) deliver to the Agent:


 


(i)                                      a description of any change necessary for the relevant financial
statements to reflect the Applicable Accounting Principles; and


 


(ii)                                   sufficient information, 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 complied with, to determine any other relevant matter set out in this Agreement
and/or to make an accurate comparison between the financial position indicated
in those financial statements and that Obligor’s Original Financial Statements.


 


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


 


(c)                            If the Company notifies the Agent of a change in accordance with
paragraph (b) above, the Company and the Agent shall enter into
negotiations in good faith with a view to agreeing any amendments to this
Agreement which are necessary as a result of the change.


 


23.4                  Information:
miscellaneous


 


The Company shall
supply to the Agent (in sufficient copies for all the Lenders, if the Agent so
requests):


 


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


 


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


 


80

















 


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


 


23.5                  Notification
of default


 


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


 


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


 


23.6                  “Know
your customer” checks


 


(a)                            If:


 


	
  (i)

  	
   

  	
  the introduction of or any change in (or in the
  interpretation, administration or application of) any law or regulation made
  after the date of this Agreement;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  any change in the status of an Obligor after the
  date of this Agreement; or

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  a proposed assignment or transfer by a Lender of any
  of its rights and obligations under this Agreement to a party that is not a
  Lender prior to such assignment or transfer,

  



 


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


 


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


 


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


 


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


 


81

















 


available to it, the Company shall promptly upon the
request of the Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Agent (for
itself or on behalf of any Lender) or any Lender (for itself or on behalf of
any prospective new Lender) in order for the Agent or such Lender or any
prospective new Lender to carry out and be satisfied it has complied with all
necessary “know your customer” or other similar checks under all applicable
laws and regulations pursuant to the accession of such Subsidiary to this
Agreement as an Additional Obligor.


 


24.                         FINANCIAL COVENANTS


 


24.1                  Financial
condition


 


The Company shall
ensure that:


 


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


 


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


 


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


 


	
  Period

  	
   

  	
  Net
  Debt: EBITDA

  	
   

  	
  EBITDA:
  Net Interest 

  Costs

  	
   

  	
  Cash
  Generated for 

  Financing: Debt 

  Service

  
	
  30
  September 2008 to and including 31 December 2008

  	
   

  	
  4.00:1.00

  	
   

  	
   

  	
   

  	
   

  
	
  31 December 2008

  	
   

  	
   

  	
   

  	
  2.75:1.00

  	
   

  	
  1.00:1.00

  
	
  1 January 2009
  to and including 31 December 2009

  	
   

  	
  4.00:1.00

  	
   

  	
  3.00:1.00

  	
   

  	
  1.00:1.00

  
	
  1 January 2010
  to and including 31 December 2010

  	
   

  	
  3.50:1.00

  	
   

  	
  3.50:1.00

  	
   

  	
  1.10:1.00

  
	
  Thereafter

  	
   

  	
  3.00:1.00

  	
   

  	
  4.00:1.00

  	
   

  	
  1.10:1.00

  



 


24.2                  Definitions


 


In this Clause 24.2:


 


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


 


82

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


	
  (i)

  	
   

  	
  Cash Generated for Financing in the Relevant Period
  ending immediately prior to the first day of the Current Relevant Period (the
  “Previous Relevant Period”) less
  Debt Service for the Previous Relevant Period;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  Net Sale Proceeds or Insurance Proceeds permitted to
  be retained for this purpose; or

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  new equity or Financial Indebtedness subordinated to
  the Facilities on terms acceptable to the Majority Lenders (acting
  reasonably) and received from a person which is not a member of the Group;
  and

  



 


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


 


83
















 


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


 


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


 


(a)                                 receivables in relation to Tax;


 


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


 


(c)                                 insurance claims; and


 


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


 


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


 


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


 


(b)                                liabilities for Tax;


 


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


 


(d)                                insurance claims.


 


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


 


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


 


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


 


(c)                                 any Financial Indebtedness subordinated to the Facilities under the
Subordination Agreement or otherwise on terms acceptable to the Majority
Lenders (acting reasonably) including, without limitation, any subordinated
shareholder loans.


 


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


 


(a)                                 Interest Expenses for that Relevant Period;


 


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


 


84

















 


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


 


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


 


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


 


(c)                                 the amount of the capital element of any payments in respect of that
Relevant Period 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
the Group before taxation (excluding the results from discontinued operations):


 


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


 


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


 


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


 


(d)                                before deducting JV Costs up to an amount not exceeding €8,000,000 (for the avoidance of
doubt, JV Costs exceeding €8,000,000 shall be deducted to the extent otherwise
required to be deducted pursuant to the terms of this Agreement);


 


(e)                                 after deducting the amount of any profit (or adding back the amount of any loss) of any
member of the Group which is attributable to minority interests;


 


(f)                                   plus or minus the Group’s share of the profits or losses (after finance
costs and tax) of Non-Group Entities (after
deducting the amount of any profit of any Non-Group Entity to the
extent that the amount of the profit included in the financial statements of
the Group exceeds the amount actually received in cash by members of the Group
through distributions by the Non-Group Entity);


 


(g)                                before taking into account any unrealised gains or losses on any derivative
instrument;


 


(h)                                before taking into account any gain or loss on the disposal or revaluation of
assets (other than in the ordinary course of trading);


 


(i)                                    before taking into account any Pension Items;


 


(j)                                    after adding back any amount attributable to the amortisation, depreciation or impairment
of assets of members of the Group (and taking no account of the reversal of any
previous impairment charge made in that Relevant Period); and


 


(k)                                 after adding back, to the extent deducted, any non-recurring fees, expenses or charges
paid in relation to (A) any restructuring, provided that it has a future
identifiable benefit 


 


85

















 


for the operation of the Group (as approved by
the Agent in consultation with the Lenders) and the amount added back does not
exceed €10,000,000 in any financial year of the Company or €25,000,000 from the
date of this Agreement; and (B) any Permitted Acquisition or Permitted
Joint Venture,


 


in each case, to the extent added, deducted or
taken into account, as the case may be, for the purposes of determining
operating profits of the Group before taxation.


 


“Exceptional
Items” means any exceptional, one off, non-recurring or
extraordinary items (including without limitation any lay-off and other
restructuring costs and any additional pension costs relating thereto, in each
case incurred by Kemira Pigments and as referred 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 other finance payments in respect of Debt (including, for the
avoidance of doubt, any Financial Indebtedness subordinated to the Facilities)
whether paid or payable (unless capitalised or included pursuant to paragraph (d) below)
by any member of the Group (calculated on a consolidated basis) in respect of
that Relevant Period:


 


(a)                                 including any upfront fees or costs which are not capitalised;


 


(b)                                including the interest (but not the capital) element of payments in respect of
Finance Leases;


 


(c)                                 including any commission, fees, discounts and other finance payments payable by
(and deducting any such amounts payable to) any member of the Group under any
interest rate hedging arrangement;


 


(d)                                including the amortisation of any capitalised finance payments; and


 


(e)                                 taking no account of any unrealised gains or losses on any derivative
instruments,


 


and so that no amount shall be added (or
deducted) more than once.


 


“Net Debt”
means, at any time, the aggregate amount of all obligations of members of the
Group for or in respect of Debt at that time but:


 


(a)                                 excluding any such obligations to any other member of the Group;


 


(b)                                including, in the case of Finance Leases only, their capitalised value;
and


 


(c)                                 deducting the aggregate amount of Cash and Cash Equivalent Investments held by
any member of the Group at that time,


 


and so that no amount shall be included or
excluded more than once.


 


“Net Interest
Expenses” means, for any Relevant Period, the Interest Expenses for
that Relevant Period after deducting
any interest or any other financial income payable in that Relevant Period to
any member of the Group on any Cash or Cash Equivalent Investment.


 


86

















 


“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 has an ownership interest.


 


“Pension
Items” means any income or charge attributable to a post-employment
benefit scheme other than the current service costs and any past service costs
and curtailments and settlements attributable to the scheme.


 


“Working
Capital” means, on any date, Current Assets less Current
Liabilities.


 


24.3                   Financial covenant calculations


 


(a)                                 Capital Expenditure, Cash Generated for Financing, Current Assets,
Current Liabilities, Debt, Debt Service, EBITDA, Exceptional Items, Interest
Expenses, Net Interest Expenses, Net Debt and Working Capital shall be
calculated and interpreted on a consolidated basis in accordance with the
Applicable Accounting Principles, unless expressly provided to the contrary,
and shall be expressed in euro.


 


(b)                                Capital Expenditure, Cash Generated for Financing, EBITDA, Interest
Expenses, Net Interest Expenses, Net Debt and Working Capital shall be
determined (except as needed to reflect the terms of this Clause 24) from the
financial statements of the Group and Compliance Certificates delivered under
Clause 23.1 (Financial statements), and Clause
23.2 (Compliance Certificate).


 


(c)                                 For the purpose of this Clause 24, an amount outstanding or repayable on
a particular day in a currency other than euro shall on that day be taken into
account in its euro equivalent at the rate of exchange that would have been
used had an audited consolidated balance sheet of the Group been prepared as at
that day in accordance with the Applicable Accounting Principles.


 


(d)                                For the purpose of this Clause 24, no item shall be included or excluded
more than once in any calculation.


 


(e)                                 To the extent that any period prior to the date of first Utilisation of
any Facility is included in any Relevant Period in Clause 24.1 (Financial condition):


 


(i)                                 Net Interest Expenses for the period from the beginning of the Relevant
Period until the date of first Utilisation of any Facility shall be calculated
on a pro forma basis on the basis of the actual Net Interest Expenses from the
date of first Utilisation of any Facility until the end of the Relevant Period;
and


 


(ii)                              EBITDA for the period from the beginning of the Relevant Period until
the date of first Utilisation of any Facility shall be the actual earnings
before interest, tax, depreciation and amortisation calculated using the same
principles set out in this Clause 24 for the calculation of EBITDA.


 


(f)                                   The Company shall provide the Agent with the financial information and
pro forma computations necessary to calculate these items.


 


(g)                                If any Permitted Acquisition occurs during a Relevant Period in relation
to a business or company and the underlying business or company is not
subsequently disposed of 


 


87

















 


during that Relevant Period (an “Acquired Entity”), the Acquired Entity’s earnings before
interest, tax, depreciation and amortisation and cash generated for financing
(calculated using the principles set out in this Clause 24 for the calculation
of EBITDA and Cash Generated for Financing, respectively) in respect of the
part of the Relevant Period before its acquisition shall be included in
determining EBITDA and Cash Generated for Financing for that Relevant Period.


 


(h)                                If any Permitted Disposal occurs during a Relevant Period in relation to
a business or company (a “Sold Entity”),
the Sold Entity’s earnings before interest, tax, depreciation and amortisation
and cash generated for financing (calculated using the principles set out in
this Clause 24 for the calculation of EBITDA and Cash Generated for Financing,
respectively) in respect of the part of the Relevant Period before its disposal
shall be excluded in determining EBITDA and Cash Generated for Financing for
that Relevant Period.


 


(i)                                    Net Interest Expenses and Debt Service shall be adjusted to reflect the
assumption of debt relating to any Acquired Entity or repayment of debt
relating to any Sold Entity.


 


25.                         GENERAL UNDERTAKINGS


 


The undertakings in this
Clause 25 remain in force from the date of this Agreement for so long as any
amount is outstanding under the Finance Documents or any Commitment is in
force.


 


25.1                   Authorisations


 


(a)                          Each Obligor shall promptly:


 


(i)                                    obtain, comply with and do all that is necessary to maintain in full
force and effect; and


 


(ii)                                 on request by the Agent, supply certified copies to the Agent of,


 


any Authorisation required under any law or
regulation of its jurisdiction of incorporation to enable it to perform its
obligations under the Finance Documents and to ensure, subject to the Legal
Reservations, the legality, validity, enforceability or admissibility in
evidence in its jurisdiction of incorporation of any Finance Document.


 


25.2                   Compliance with laws


 


Each Obligor shall comply in all respects with
all laws to which it is subject, if failure so to comply would be reasonably
expected to have a Material Adverse Effect.


 


25.3                   Negative pledge


 


(a)                          No Obligor shall (and the Company shall ensure that no other member of
the Group will) create or permit to subsist any Security or Quasi Security over
any of its assets.


 


(b)                         Paragraph
(a) does not apply to any Security or Quasi Security which is Permitted
Security.


 


25.4                   Disposals


 


(a)                          No Obligor shall (and the Company shall ensure that no other member of
the Group will) enter into a single transaction or a series of transactions
(whether related or not and whether voluntary or involuntary) to sell, lease,
transfer or otherwise dispose of any asset.


 


(b)                         Paragraph
(a) above does not apply to any sale, lease, transfer or other disposal
which is a Permitted Disposal or a Permitted Transaction.


 


88

















 


25.5                   Merger


 


No Obligor shall (and the Company shall ensure
that no other member of the Group will) enter into any amalgamation, demerger,
merger or corporate reconstruction without the prior written consent of the
Majority Lenders other than a Permitted Transaction.


 


25.6                   Change of business


 


The Company shall procure that no substantial
change is made to the general nature of the business of the Group taken as a
whole from that carried on at the date of this Agreement.


 


25.7                   Insurance


 


Each Obligor shall (and the Company shall
ensure that each other member of the Group will) maintain insurances on and in
relation to its business and assets with reputable underwriters or insurance
companies against those risks, and to the extent, usually insured against by
prudent companies located in the same or a similar location and carrying on a
similar business.


 


25.8                   Environmental undertakings


 


Each Obligor shall (and the
Company shall ensure that each other member of the Group will):


 


(a)                                 comply with all Environmental Laws to which it is subject;


 


(b)                                obtain all Environmental Licences required in connection with its
business; and


 


(c)                                 comply with the terms of all those Environmental Licences,


 


in each case where failure to do has or is reasonably
likely to have a Material Adverse Effect.


 


25.9                   Environmental claims


 


Each Obligor shall (and the Company shall
ensure that each other member of the Group will) promptly notify the Agent of
any claim, notice or other communication received by it in respect of any
actual or alleged breach of or liability under Environmental Law which, if
substantiated, has or is reasonably likely to have a Material Adverse Effect.


 


25.10             Assets


 


Each Obligor shall (and the Company shall
ensure that each other member of the Group will) maintain in good working order
and condition (ordinary wear and tear excepted) all its assets necessary for
the conduct of its business as conducted from time to time.


 


25.11             Pari passu


 


Each Obligor shall ensure that its obligations
under the Finance Documents rank at all times at least pari passu in right of priority and
payment with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally.


 


25.12             Loans or credit


 


(a)                          No Obligor shall (and the Company shall ensure that no other member of
the Group will) be a creditor in respect of any Financial Indebtedness.


 


(b)                         Paragraph
(a) above does not apply to a Permitted Loan or a Permitted Transaction.


 


25.13             Guarantees


 


(a)                          No Obligor shall (and the Company shall ensure that no other member of
the Group will) issue or allow to remain outstanding any guarantee in respect
of any liability or obligation of any person.


 


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  (b)

  	
  Paragraph
  (a) above does not apply to a Permitted Guarantee.

  
	
   

  	
   

  
	
  25.14

  	
  Financial Indebtedness

  
	
   

  	
   

  
	
  (a)

  	
  No
  Obligor shall (and the Company shall ensure that no other member of the Group
  will) incur (or agree to incur) or allow to remain outstanding any Financial
  Indebtedness.

  
	
   

  	
   

  
	
  (b)

  	
  Paragraph
  (a) above does not apply to Financial Indebtedness that is Permitted
  Financial Indebtedness or a Permitted Transaction.

  
	
   

  	
   

  
	
  25.15

  	
  Restricted payments

  
	
   

  	
   

  
	
   

  	
  The
  Company shall not:

  
	
   

  	
   

  
	
   

  	
  (i)

  	
  declare,
  pay or make any dividend or other payment or distribution of any kind on or
  in respect of any of its shares; or

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  reduce,
  return, purchase, repay, cancel or redeem any of its shares,

  
	
   

  	
   

  
	
   

  	
  provided
  that the Company may take such action at any time when the ratio of Net Debt
  on the most recent Quarter Date to EBITDA for the Relevant Period ending on
  that Quarter Date is less than or equal to 2.50:1.00 and that immediately
  after any such action is taken, such ratio will be less than or equal to
  2.50:1.00.

  
	
   

  	
   

  
	
  25.16

  	
  Acquisitions

  
	
   

  	
   

  
	
  (a)

  	
  No
  Obligor shall (and the Company shall ensure that no other member of the Group
  will):

  
	
   

  	
   

  
	
   

  	
  (i)

  	
  acquire
  any share in, or any security issued by, any person, or any interest therein
  (or agree to do any of the foregoing); or

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  acquire
  any business or going concern, or the whole or substantially the whole of the
  assets or business of any person, or any assets that constitute a division or
  operating unit of the business of any person (or agree to do any of the
  foregoing).

  
	
   

  	
   

  
	
  (b)

  	
  Paragraph
  (a) above does not apply to any acquisition or investment which is a
  Permitted Acquisition or a Permitted Transaction.

  
	
   

  	
   

  
	
  25.17

  	
  Arm’s length terms

  
	
   

  	
   

  
	
  (a)

  	
  No
  Obligor shall (and the Company shall ensure that no other member of the Group
  will) enter into any contract or arrangement with or for the benefit of any
  other person which is not a member of the Group (including any disposal to
  that person) other than in the ordinary course of business and on arm’s
  length terms or better.

  
	
   

  	
   

  
	
  (b)

  	
  Paragraph
  (a) above does not apply to:

  
	
   

  	
   

  
	
   

  	
  (i)

  	
  any
  JV Costs up to an aggregate amount of £8,000,000; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  a
  Permitted Transaction.

  
	
   

  	
   

  
	
  (c)

  	
  The
  Company shall ensure that no member of the Group which is not an Obligor
  shall enter into any contract or arrangement regarding a sale, lease,
  transfer or other disposal or a loan, credit or other arrangement having a
  similar effect with or for the benefit of any Obligor on terms less
  advantageous to that Obligor than arm’s length terms.

  



 


90

















 


25.18             Hedging


 


(a)                          The Company shall ensure that the hedging required by the Hedging Letter
is effected within 90 days after the date of first utilisation of any Facility
(and is maintained in effect) in accordance with the terms of the Hedging
Letter.


 


(b)                         No
Obligor shall (and the Company shall ensure that no other member of the Group
will) enter (or agree to enter) into any derivative transaction.


 


(c)                          Paragraph (b) above does not apply to any derivative transaction which
is a Permitted Hedging Transaction.


 


25.19             Pensions


 


The Company shall ensure that all pension
schemes maintained or operated by, or for the benefit of, any member of the
Group and/or any of its employees:


 


(i)                                    are maintained and operated in all material respects in accordance with
all applicable laws and contracts and their governing provisions; and


 


(ii)                                 are funded substantially in accordance with the governing provisions of
the scheme with any funding shortfall advised by actuaries of recognised standing
being rectified in accordance with those governing provisions.


 


25.20             Taxes


 


(a)                          Each Obligor shall (and the Company shall ensure that each other member
of the Group will) pay all material Taxes required to be paid by it within the
time period allowed for payment without incurring any material penalties for
non-payment.


 


(b)                         Paragraph
(a) above does not apply to any Taxes:


 


(i)                                    being contested by the relevant member of the Group in good faith and in
accordance with the relevant procedures;


 


(ii)                                 for which adequate reserves are being maintained in accordance with, and
to the extent required by, GAAP; and


 


(iii)                              where payment can be lawfully withheld and will not result in the
imposition of any penalty nor in any Security ranking in priority to the claims
of any Finance Party under any Finance Document or to any Security created
under any Security Document.


 


(c)                          No member of the Group may change its residence for Tax purposes.


 


25.21             Joint Ventures


 


(a)                          No Obligor shall (and the Company shall ensure that no member of the
Group will):


 


(i)                                    invest in or acquire (or agree to invest in or acquire) any share in, or
any security issued by, any Joint Venture or any interest therein; or


 


(ii)                                 transfer any assets, or lend, to or give a guarantee, Security or Quasi Security
for, or otherwise underwrite, the obligations of, or incur any other liability
(whether actual or contingent and whether present or future) in respect of, a
Joint Venture (or agree to do any of the foregoing).


 


91

















 


(b)                         Paragraph
(a) above does 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 other liability in respect of, the Ti02 Joint Venture or
a Permitted Joint Venture.


 


25.22             Guarantees and Security


 


(a)                          The Company shall:


 


	
  (i)

  	
  within
  30 days of a member of the Group becoming a Material Subsidiary, ensure that
  the relevant member of the Group becomes an Additional Guarantor in
  accordance with Clause 28 (Changes to
  the Obligors).

  



 


(b)                         The
Company need only perform its obligations under paragraph (a) above if it
is not unlawful for the relevant person to become a Guarantor and that person
becoming a Guarantor would not result in personal liability for that person’s
directors or other management. Each Obligor must use, and must procure that the
relevant person uses, all reasonable endeavours lawfully available to avoid any
such unlawfulness or personal liability. This includes agreeing to a limit on
the amount guaranteed. The Agent may (but shall not be obliged to) agree to
such a limit if, in its opinion, to do so would avoid the relevant unlawfulness
or personal liability.


 


(c)                          Each Obligor shall (and the Company shall ensure that each other member
of the Group will), at its own expense, promptly take all such action as the
Agent or the Security Agent may require:


 


(i)                                    for the purpose of perfecting or protecting any of the Finance Parties’
rights under, and preserving the Security intended to be created or evidenced
by, any of the Finance Documents; and


 


(ii)                                 for the purpose of facilitating the realisation of any of that Security,


 


including the execution of any transfer,
conveyance, assignment or assurance of any asset and the giving of any notice,
order or direction and the making of any registration which the Agent or the
Security Agent may reasonably require.


 


(d)                         The
Company shall ensure that at all times:


 


(i)                                    the aggregate of the unconsolidated net assets (excluding any intragroup
loans) of the Guarantors (without double counting and excluding any interests
in any Subsidiaries which are Guarantors) exceeds 80 per cent. of the
consolidated net assets of the Group; and


 


(ii)                                 the aggregate of the unconsolidated revenues or EBITDA of the Guarantors
(without double counting and excluding any dividends or other distributions
from Subsidiaries which are Guarantors) exceeds 80 per cent. of the
consolidated revenues or EBITDA of the Group,


 


in each case calculated by reference to the
then most recent annual and quarterly unaudited unconsolidated financial
statements of each Guarantor and the then most recent annual and quarterly
audited consolidated financial statements of the Group.


 


25.23             Issue of shares


 


(a)                          No Obligor (other than the Company) shall (and the Company shall ensure
that no other member of the Group will):


 


92

















 


(i)                                    issue any share to any person; or


 


(ii)                                 grant to any person any conditional or unconditional option, warrant or
other right to call for the issue or allotment of, subscribe for, purchase or
otherwise acquire any share of any member of the Group (including any right of
pre-emption, conversion or exchange), or alter any right attaching to any share
capital of any member of the Group.


 


(b)                         Paragraph
(a) above does not apply to:


 


(i)                                    any issue of shares by a member of the Group to its immediate holding
company; and


 


(ii)                                 any issue of shares by a member of the Group which is not wholly-owned,
if such shares are issued pro rata to its shareholders.


 


26.                         EVENTS OF DEFAULT


 


Each of the events or
circumstances set out in Clause 26 is an Event of Default (save for Clause
26.16 (Acceleration).


 


26.1                   Non-payment


 


An Obligor does not pay on the due date any
amount payable pursuant to a Finance Document at the place at and in the
currency in which it is expressed to be payable unless:


 


(a)                                 its failure to pay is caused by:


 


(i)                                 administrative or technical error; or


 


(ii)                              a Disruption Event; and


 


(b)                                payment is made within 3 Business Days of its due date.


 


26.2                   Financial covenants


 


Any requirement of Clause 24 (Financial covenants) is not satisfied.


 


26.3                   Other obligations


 


(a)                          Any person (other than a Finance Party) does not comply with Clauses
25.4 (Disposals), 25.5 (Merger), 25.14 (Financial Indebtedness), 25.16 (Acquisitions), 25.21 (Joint
ventures) and 25.22 (Guarantees
and Security) (other than paragraph (c) thereof).


 


(b)                         An
Obligor does not comply with any provision of the Finance Documents (other than
those referred to in Clause 26.1 (Non-payment)
and Clause 26.2 (Financial covenants)
and paragraph (a) above), unless the failure to comply is capable of
remedy and is remedied within 20 Business Days of the earlier of the Agent
giving notice to the Company or the Company becoming aware of the failure to
comply.


 


26.4                   Misrepresentation


 


Any representation or statement made or deemed
to be made by an Obligor in the Finance Documents or any other document
delivered by or on behalf of any Obligor under or in connection with any
Finance Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made unless the facts or
circumstances underlying the misrepresentation are capable of remedy and are
remedied within the earlier of 20 Business Days of the Agent giving notice to
the Company and the Company becoming aware of the misrepresentation.


 


93
















 


26.5                   Cross default


 


(a)                          Any Financial Indebtedness of any member of the Group is not paid when
due nor within any originally applicable grace period.


 


(b)                         Any
Financial Indebtedness of any member of the Group is declared to be or
otherwise becomes due and payable prior to its specified maturity as a result
of an event of default (however described).


 


(c)                          Any commitment for any Financial Indebtedness of any member of the Group
is cancelled or suspended by a creditor of any member of the Group as a result
of an event of default (however described).


 


(d)                         Any
creditor of any member of the Group becomes entitled to declare any Financial
Indebtedness of any member of the Group due and payable prior to its specified
maturity as a result of an event of default (however described).


 


(e)                          No Event of Default will occur under this Clause 26.5
if the aggregate amount of Financial Indebtedness or commitment for Financial
Indebtedness falling within paragraphs (a) to (d) above is less than €1,000,000
(or its equivalent in any other currency or currencies).


 


26.6                   Insolvency


 


(a)                          A member of the Group is unable or admits inability to pay its debts as
they fall due, suspends making payments on any of its debts or, by reason of
actual or anticipated financial difficulties, commences negotiations with one
or more of its creditors with a view to rescheduling any of its indebtedness.


 


(b)                         The
value of the assets of any member of the Group is less than its liabilities
(taking into account contingent and prospective liabilities).


 


(c)                          A moratorium is declared in respect of any indebtedness of any member of
the Group.


 


26.7                   Insolvency proceedings


 


(a)                          In relation to a member of the Group having its seat in Germany:


 


(i)                                    a petition for insolvency proceedings in respect of its assets (Antrag auf Eröffnung eines Insolvenzverfahrens)
is filed, threatened to be filed or any event occurs which constitutes a cause
for the initiation of insolvency proceedings (Eröffnungsgrund)
as set out in sections 17 et seq. of the German Insolvency Code (Insolvenzordnung); or


 


(ii)                                 actions are taken pursuant to section 21 of the German Insolvency
Code by a competent court; or


 


(iii)                              it commences negotiations with one or more of its creditors with a view
to the general readjustment or rescheduling of its indebtedness; or


 


(b)                         with
respect to any member of the Group located outside Germany, any corporate
action, legal proceedings or other procedure or step is taken in relation to:


 


(i)                                    the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any member of the Group
other than a solvent liquidation or reorganisation of any member of the Group
which is not an Obligor;


 


94

















 


(ii)                                 a composition, compromise, assignment or arrangement with any creditor
of any member of the Group;


 


(iii)                              the appointment of a liquidator (other than in respect of a solvent liquidation
of a member of the Group which is not an Obligor), receiver, administrative
receiver, administrator, compulsory manager or other similar officer in respect
of any member of the Group or any of its assets; or


 


(iv)                             enforcement of any Security over any assets of any member of the Group,
or


 


(c)                          any analogous procedure or step is taken in any jurisdiction,  


 


provided that no Event of Default shall have
occurred under this Clause 26.7 in respect of (A) an amalgamation,
demerger, merger, consolidation or corporate reconstruction on a solvent basis
of a member of the Group which is not an Obligor, or (B) any winding-up
petition which is frivolous or vexatious and is discharged, stayed or dismissed
within 14 days of commencement and prior to its advertisement.


 


(d)                         unless
the context otherwise requires, a reference in each Finance Document in respect
of an entity incorporated in Finland to:


 


(i)                                    winding-up, administration or dissolution includes any declaration of
bankruptcy (asetettu konkurssiin);


 


(ii)                                 an insolvency includes a bankruptcy (konkurssi)
and any business restructuring (yrityssaneeraus);


 


(iii)                              a liquidator in bankruptcy includes a “pesänhoitaja”;


 


(iv)                             an administrator includes a “selvittäjä”
and “valvoja” in a business
restructuring (yrityssaneeraus);
and


 


(v)                                an attachment includes a “takavarikko”
and/or any other “turvaamistoimi”
granted in accordance with Finnish law.


 


26.8                   Creditors’ process


 


Any expropriation, attachment, sequestration,
distress or execution or any analogous process in any jurisdiction affects any
asset or assets of a member of the Group and is not discharged within 5
Business Days.


 


26.9                   Ownership of the Obligors


 


An Obligor (other than the Company) is not or
ceases to be a Subsidiary of the Company.


 


26.10             Unlawfulness


 


It is or becomes unlawful for an Obligor to
perform any of its obligations under the Finance Documents.


 


26.11             Repudiation


 


An Obligor repudiates a Finance Document or
evidences an intention to repudiate a Finance Document.


 


95

















 


26.12             Security and guarantees


 


Any Security Document or any guarantee in, or
any subordination under, any Finance Document is not in full force and effect
or any Security Document does not create 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 the ranking and priority it is expressed to have in a
manner and to an extent which is or is reasonably likely to be materially
adverse to the interests of the Lenders under the Finance Documents.


 


26.13             Material adverse change


 


The Majority Lenders (acting reasonably)
determine that a Material Adverse Effect exists, has occurred or might
reasonably be expected to occur.


 


26.14             Litigation


 


(a)                          Any litigation, arbitration, proceeding or dispute is started or
threatened or there are any circumstances likely to give rise to any
litigation, arbitration, proceeding or dispute, in each case which, if
adversely determined, might reasonably be expected to have a Material Adverse
Effect.


 


(b)                         Paragraph
(a) shall not apply to any litigation, arbitration or administrative
proceedings which are vexatious or frivolous.


 


26.15             Cessation of business


 


Any Obligor suspends or ceases (or threatens to
suspend or cease) to carry on all or a material part of its business except as
part of a Permitted Merger, Permitted Transaction or a Permitted Disposal.


 


26.16             Acceleration


 


(a)                          On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority Lenders, by
notice to the Company:


 


(i)                                    cancel the Total Commitments whereupon they shall immediately be
cancelled;


 


(ii)                                 declare that all or part of the Utilisations, together with accrued
interest, and all other amounts accrued or outstanding under the Finance
Documents be immediately due and payable, whereupon they shall become
immediately due and payable;


 


(iii)                              declare that all or part of the Utilisations be payable on demand,
whereupon they shall immediately become payable on demand by the Agent on the
instructions of the Majority Lenders; and/or


 


(iv)                             declare that full cash cover in respect of each Letter of Credit or Bank
Guarantee is immediately due and payable whereupon it shall become immediately
due and payable.


 


(b)                         Promptly
after being notified by the Agent of the Acceleration Date, each Ancillary
Lender shall by notice to the Company:


 


(i)                                    cancel its Ancillary Commitment whereupon it shall immediately be
cancelled;


 


(ii)                                 declare that all or the corresponding part of the utilisations under any
Ancillary Facility provided by that Ancillary Lender, together with accrued
interest, full cash cover in respect of all or the corresponding part of the
contingent liabilities of that Ancillary Lender under that Ancillary Facility,
and all or the corresponding part of all other amounts 


 


96

















 


accrued or outstanding in respect of that
Ancillary Facility be immediately due and payable, whereupon they shall become
immediately due and payable; and/or


 


(iii)                              declare that all or the corresponding part of the utilisations under any
Ancillary Facility provided by that Ancillary Lender, together with accrued
interest, full cash cover in respect of all or the corresponding part of the
contingent liabilities of that Ancillary Lender under that Ancillary Facility,
and all or the corresponding part of all other amounts accrued or outstanding
in respect of that Ancillary Facility be payable upon demand, whereupon they
shall immediately become payable on demand by that Ancillary Lender (on the
instructions of the Agent, if so directed by the Majority Lenders).


 


(c)                          No Ancillary Lender may cancel the whole or any part of its Ancillary
Commitment, declare that all or part of the utilisations under an Ancillary
Facility provided by that Ancillary Lender be immediately due and payable or
require the payment of cash cover in respect of all or any part of any
contingent liabilities of that Ancillary Lender under an Ancillary Facility
unless the Agent has delivered a notice to the Company pursuant to
sub-paragraph (ii) of paragraph (a) of this Clause 26.16.


 


97

















 


SECTION 9


 


CHANGES TO PARTIES


 


27.                         CHANGES TO THE LENDERS


 


27.1                   Assignments and transfers by the Lenders


 


Subject to this Clause 27, a
Lender (the “Existing  Lender”) may:


 


(a)                                 assign any of its rights; or


 


(b)                                transfer by novation any of its rights and obligations,


 


to another bank or financial institution or to
a trust, fund or other entity which is regularly engaged in or established for
the purpose of making, purchasing or investing in loans, securities or other
financial assets (the “New Lender”).


 


27.2                   Conditions of assignment or transfer


 


(a)                          The consent of the Company is required for an assignment or transfer by
an Existing Lender, unless the assignment or transfer is (i) prior to the
Syndication Date, provided the New Lender is on the list of potential syndicate
members agreed by the Company and the Agent, (ii) to another Existing
Lender or an Affiliate of a Existing Lender or (iii) made while an Event
of Default is continuing.


 


(b)                         The
consent of the Company to an assignment or transfer must not be unreasonably
withheld or delayed.  The Company will be
deemed to have given its consent five Business Days after the Existing Lender
has requested it unless consent is expressly refused by the Company within that
time.


 


(c)                          The consent of the Company to an assignment or transfer must not be
withheld solely because the assignment or transfer may result in an increase to
the Mandatory Cost.


 


(d)                         The
consent of the Issuing Bank to an assignment or transfer is required in
accordance with paragraph (a) of Clause 7.2 (Assignments and transfers).


 


(e)                          An assignment will only be effective on:


 


(i)                                    receipt by the Agent of written confirmation from the New Lender (in
form and substance satisfactory to the Agent) that the New Lender will assume
the same obligations to the other Finance Parties as it would have been under
if it was an Original Lender; and


 


(ii)                                 performance by the Agent of all necessary “know your customer” or other
similar checks under all applicable laws and regulations in relation to such
assignment to a New Lender, the completion of which the Agent shall promptly
notify to the Existing Lender and the New Lender.


 


(f)         A
transfer will only be effective if the procedure set out in Clause 27.5 (Procedure for transfer) is complied with.


 


(g)        Any assignment or transfer by an
Existing Lender to a New Lender shall only be effective if it transfers or assigns
the Existing Lender’s share of each Facility pro rata.


 


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(h)        If:


 


(i)                                    a Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office; and


 


(ii)                                 as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged to make a payment to the
New Lender or Lender acting through its new Facility Office under Clause 16 (Tax gross-up and indemnities) or Clause 17 (Increased Costs),


 


then the New Lender or Lender acting through
its new Facility Office is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender or Lender acting through its previous
Facility Office would have been if the assignment, transfer or change had not
occurred.


 


27.3                   Assignment or transfer fee


 


The New Lender shall, on the date upon which an
assignment or transfer takes effect, pay to the Agent (for its own account) a
fee of €2,000.


 


27.4                   Limitation of responsibility of Existing Lenders


 


(a)                          Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender for:


 


(i)                                    the legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other documents;


 


(ii)                                 the financial condition of any Obligor;


 


(iii)                              the performance and observance by any Obligor of its obligations under
the Finance Documents or any other documents; or


 


(iv)                             the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other document,


 


and any representations or warranties implied
by law are excluded.


 


(b)                         Each
New Lender confirms to the Existing Lender and the other Finance Parties that
it:


 


(i)                                    has made (and shall continue to make) its own independent investigation
and assessment of the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by the Existing Lender
in connection with any Finance Document; and


 


(ii)                                 will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities whilst any amount is
or may be outstanding under the Finance Documents or any Commitment is in
force.


 


(c)                          Nothing in any Finance Document obliges an Existing Lender to:


 


(i)                                    accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 27; or


 


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(ii)                                 support any losses directly or indirectly incurred by the New Lender by
reason of the non-performance by any Obligor of its obligations under the
Finance Documents or otherwise.


 


27.5                   Procedure for transfer


 


(a)                          Subject to the conditions set out in Clause 27.2 (Conditions of assignment or transfer) a
transfer is effected in accordance with paragraph (c) below when the Agent
executes an otherwise duly completed Transfer Certificate delivered to it by
the Existing Lender and the New Lender. 
The Agent shall, subject to paragraph (b) below, as soon as
reasonably practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that
Transfer Certificate.


 


(b)                         The Agent shall only be obliged to execute a Transfer
Certificate delivered to it by the Existing Lender and the New Lender once it
is satisfied it has complied with all necessary “know your customer” or other
similar checks under all applicable laws and regulations in relation to the
transfer to such New Lender.


 


(c)                          On the Transfer Date:


 


(i)                                    to the extent that in the Transfer Certificate the Existing Lender seeks
to transfer by novation its rights and obligations under the Finance Documents
each of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their
respective rights against one another under the Finance Documents shall be
cancelled (being the “Discharged Rights and
Obligations”);


 


(ii)                                 each of the Obligors and the New Lender shall assume obligations towards
one another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and the
Existing Lender;


 


(iii)                              the Agent, the Arranger, the Security Agent, the New Lender, the other
Lenders, the Issuing Bank and any relevant Ancillary Lenders shall acquire the
same rights and assume the same obligations between themselves as they would
have acquired and assumed had the New Lender been an Original Lender with the
rights and/or obligations acquired or assumed by it as a result of the transfer
and to that extent the Agent, the Arranger, the Security Agent, the Issuing
Bank, any relevant Ancillary Lender and the Existing Lender shall each be
released from further obligations to each other under the Finance Documents;
and


 


(iv)                             the New Lender shall become a Party as a “Lender”.


 


27.6                   Copy of Transfer Certificate to Company


 


The Agent shall, as soon as reasonably
practicable after it has executed a Transfer Certificate, send to the Company a
copy of that Transfer Certificate.


 


27.7                   Disclosure of information


 


Any Lender may disclose to any of its
Affiliates and any other person:


 


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(a)                                 to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and obligations under
this Agreement;


 


(b)                                with (or through) whom that Lender enters into (or may potentially enter
into) any sub-participation in relation to, or any other transaction under
which payments are to be made by reference to, this Agreement or any Obligor;


 


(c)                                 to whom, and to the extent that, information is required to be disclosed
by any applicable law or regulation; or


 


(d)                                for whose benefit that Lender charges, assigns or otherwise creates
Security (or may do so) pursuant to Clause 27.8 (Security
over Lenders’ rights),


 


any information about any Obligor, the Group
and the Finance Documents as that Lender shall consider appropriate if, in
relation to paragraphs (a), (b) and (d) (in respect of 26.8 (b) (Creditors’ process)) above, the person to
whom the information is to be given has entered into a Confidentiality
Undertaking.  This Clause supersedes any
previous agreement relating to the confidentiality of this information.


 


27.8                   Security over Lenders’ rights


 


In addition to the other
rights provided to Lenders under this Clause 27, each Lender may without
consulting with or obtaining consent from any Obligor, at any time charge,
assign or otherwise create Security in or over (whether by way of collateral or
otherwise) all or any of its rights under any Finance Document to secure
obligations of that Lender including:


 


(a)                                 any charge, assignment or other Security to secure obligations to a
federal reserve or central bank; and


 


(b)                                in the case of any Lender which is a fund, any charge, assignment or
other Security granted to any holders (or trustee or representatives of
holders) of obligations owed, or securities issued, by that Lender as Security
for those obligations or securities,


 


except that no such charge, assignment or
Security shall:


 


(i)                                  release a Lender from any of its obligations under the Finance Documents
or substitute the beneficiary of the relevant charge, assignment or Security
for the Lender as a party to any of the Finance Documents; or


 


(ii)                               require any payments to be made by an Obligor or grant to any person any
more extensive rights than those required to be made or granted to the relevant
Lender under the Finance Documents.


 


28.                         CHANGES TO THE OBLIGORS


 


28.1                   Assignments and transfer by Obligors


 


No Obligor may assign any of its rights or
transfer any of its rights or obligations under the Finance Documents.


 


28.2                   Additional Borrowers


 


(a)                          Subject to compliance with the provisions of paragraphs
(c) and (d) of Clause 23.6 (“Know
your customer” checks), the Company may request that any of its
wholly owned Subsidiaries becomes an Additional Borrower.  That Subsidiary shall become an Additional
Borrower if:


 


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(i)                                    all the Lenders participating in the relevant Facility approve the
addition of that Subsidiary;


 


(ii)                                 the Company delivers to the Agent a duly completed and executed
Accession Letter;


 


(iii)                              the Company confirms that no Default is continuing or would occur as a
result of that Subsidiary becoming an Additional Borrower; and


 


(iv)                             the Agent has received all of the documents and other evidence listed in
Part II of Schedule 2 (Conditions
precedent) in relation to that Additional Borrower, each in form and
substance satisfactory to the Agent.


 


(b)                         The
Agent shall notify the Company and the Lenders promptly upon being satisfied
that it has received (in form and substance satisfactory to it) all the
documents and other evidence listed in Part II of Schedule 2 (Conditions precedent).


 


28.3                   Resignation of a Borrower


 


(a)         In this Clause 28.3 (Resignation of a Borrower), Clause 28.5 (Resignation of a Guarantor) and Clause
28.7 (Resignation and release of Security on
disposal), “Third Party Disposal”
means the disposal of an Obligor to a person which is not a member of the Group
where that disposal is permitted under Clause 25.4 (Disposals) or made with the approval of the Majority Lenders
(and the Parent has confirmed this is the case).


 


(b)        If a Borrower is the subject of a Third
Party Disposal, the Company may request that such Borrower (other than the
Company) ceases to be a Borrower by delivering to the Agent a Resignation
Letter.


 


(c)         The
Agent shall accept a Resignation Letter and notify the Company and the other
Finance Parties of its acceptance if:


 


(i)                                    the Company has confirmed that no Default is continuing or would result
from the acceptance of the Resignation Letter;


 


(ii)                                 the Borrower is under no actual or contingent obligations as a Borrower
under any Finance Documents;


 


(iii)                              where the Borrower is also a Guarantor (unless its resignation has been
accepted in accordance with Clause 28.5 (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 Legal
Reservations) and the amount guaranteed by it as a Guarantor is not decreased
(and the Company has confirmed this is the case); and


 


(iv)                             the Company has confirmed that it shall ensure that any relevant Net
Sale Proceeds will be applied in accordance with Clause 11.5 (Mandatory prepayment – Net Sale Proceeds).


 


(d)                         Upon
notification by the Agent to the Company of its acceptance of the resignation
of a Borrower, that company shall cease to be a Borrower and shall have no
further rights or obligations under the Finance Documents as a Borrower except
that the resignation shall not take effect (and the Borrower will continue to
have rights and obligations under the Finance Documents) until the date on
which the Third Party Disposal takes effect.


 


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(e)                          The Agent may, at the cost and expense of the Company, require a legal
opinion from counsel to the Agent confirming the matters set out in paragraph
(c)(iii) above and the Agent shall be under no obligation to accept a
Resignation Letter until it has obtained such opinion in form and substance
satisfactory to it.


 


28.4                   Additional Guarantors


 


(a)                          Subject to compliance with the provisions of paragraphs (c) and (d) of
Clause 23.6 (“Know your customer” checks),
the Company may request that any of its wholly owned Subsidiaries become an
Additional Guarantor.  That Subsidiary
shall become an Additional Guarantor if:


 


(i)                                    (except in the case of an Additional Guarantor incorporated in a
jurisdiction of incorporation of an existing Obligor) the Agent approves the
addition of that Subsidiary;


 


(ii)                                 the Company delivers to the Agent a duly completed and executed
Accession Letter; and


 


(iii)                              the Agent has received all of the documents and other evidence listed in
Part II of Schedule 2 (Conditions
precedent) in relation to that Additional Guarantor, each in form
and substance satisfactory to the Agent.


 


(b)                         The
Agent shall notify the Company and the Lenders promptly upon being satisfied
that it has received (in form and substance satisfactory to it) all the
documents and other evidence listed in Part II of Schedule 2 (Conditions precedent).


 


28.5                   Resignation of a Guarantor


 


(a)                          The Company may request that a Guarantor (other than the Company) ceases
to be a Guarantor by delivering to the Agent a Resignation Letter if that
Guarantor is being disposed of by way of a Third Party Disposal (as defined in
Clause 28.3 (Resignation of a Borrower))
and the Company has confirmed this is the case.


 


(b)                         The
Agent shall accept a Resignation Letter and notify the Company and the Lenders
of its acceptance if:


 


(i)                                    the Company has confirmed that no Default is continuing or would result
from the acceptance of the Resignation Letter;


 


(ii)                                 no payment is due from the Guarantor under Clause 21.1 (Guarantee and indemnity);


 


(iii)                              where the Guarantor is also a Borrower, it is under no actual or
contingent obligations as a Borrower and has resigned and ceased to be a
Borrower under Clause 28.3 (Resignation of a Borrower);
and


 


(iv)                             the Company has confirmed that it shall ensure that the Net Sale
Proceeds will be applied, in accordance with Clause 11.5 (Mandatory
Prepayment – Net Sale Proceeds).


 


(c)                          The resignation of that Guarantor shall not be effective until the date
of the relevant Third Party Disposal at which time that company shall cease to
be a Guarantor and shall have no further rights or obligations under the
Finance Documents as a Guarantor.


 


28.6                   Repetition of Representations


 


Delivery of an Accession
Letter constitutes confirmation by the relevant Subsidiary that the Repeating
Representations and each of the representations set out in Clauses 22.5 (Validity and admissibility in evidence),  22.7 (Deduction
of Tax) and  22.8 (No filing or stamp taxes) are true 


 


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and correct in relation to it as at the date of
delivery as if made by reference to the facts and circumstances then existing.


 


28.7                  Resignation and release of security on disposal


 


(a)                          If a Borrower or Guarantor is or is proposed to be the subject of a
Third Party Disposal then:


 


(i)                                    where that Borrower or Guarantor created Security pursuant to any
Finance Document over any of its assets or business in favour of the Security
Agent, or Security pursuant to any Finance Document in favour of the Security
Agent was created over the shares (or equivalent) of that Borrower or
Guarantor, the Security Agent may at the cost and request of the Company,
release those assets, business or shares (or equivalent) and issue certificates
of non-crystallisation;


 


(ii)                                 the resignation of that Borrower or Guarantor and related release of
Security pursuant to any Finance Document referred to in paragraph (i) above
shall not become effective until the date of that disposal; and


 


(iii)                              if the disposal of that Borrower or Guarantor is not made, the
Resignation Letter of that Borrower or Guarantor and the related release of
Security referred to in paragraph (i) above shall have no effect and the
obligations of the Borrower or Guarantor and the Security pursuant to any
Finance Document created or intended to be created by or over that Borrower or
Guarantor shall continue in full force and effect.


 


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SECTION 10


 


THE FINANCE PARTIES


 


29.                         ROLE OF THE AGENT, THE SECURITY AGENT AND THE ARRANGER


 


29.1                   Appointment of the Agent and the Security Agent


 


(a)                          Each other Finance Party appoints the Agent to act as its agent under
and in connection with the Finance Documents.


 


(b)                         Each
other Finance Party appoints the Security Agent to act as security trustee
under and in connection with the Finance Documents.


 


(c)                          Each other Finance Party authorises each of the Agent and the Security
Agent to exercise the rights, powers, authorities and discretions specifically
given to it under or in connection with the Finance Documents together with any
other incidental rights, powers, authorities and discretions.


 


29.2                   Duties of the Agent and the Security Agent


 


(a)                          The Agent shall promptly forward to a Party the original or a copy of
any document which is delivered to the Agent for that Party by any other Party.


 


(b)                         Except
where a Finance Document specifically provides otherwise, the Agent is not
obliged to review or check the adequacy, accuracy or completeness of any
document it forwards to another Party.


 


(c)                          If the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a Default,
it shall promptly notify the Finance Parties.


 


(d)                         If the
Agent is aware of the non-payment of any principal, interest, commitment fee or
other fee payable to a Finance Party (other than the Agent or the Arranger)
under this Agreement it shall promptly notify the other Finance Parties.


 


(e)                          The Agent shall promptly send to the Security Agent such certification
as the Security Agent may require pursuant to paragraph 7 (Basis of distribution) of Schedule 7 (Security Agency provisions).


 


(f)                            The duties of the Agent and the Security Agent under the Finance
Documents are solely mechanical and administrative in nature.


 


29.3                   Role of the Arranger


 


Except as specifically provided in the Finance
Documents, the Arranger has no obligations of any kind to any other Party under
or in connection with any Finance Document.


 


29.4                   Role of the Security Agent


 


The Security Agent shall not be an agent of
(except as expressly provided in any Finance Document) any Finance Party under
or in connection with any Finance Document.


 


29.5                   No fiduciary duties


 


(a)                          Nothing in this Agreement constitutes the Agent, the Security Agent
(except as expressly provided in any Finance Document) or the Arranger as a
trustee or fiduciary of any other person.


 


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(b)                         Neither
the Agent, the Security Agent (except as expressly provided in any Finance
Document) nor the Arranger shall be bound to account to any Lender for any sum
or the profit element of any sum received by it for its own account.


 


29.6                   Business with the Group


 


The Agent, the Security Agent and the Arranger
may accept deposits from, lend money to and generally engage in any kind of
banking or other business with any member of the Group.


 


29.7                   Rights and discretions of the Agent and the Security Agent


 


(a)                          The Agent and the Security Agent may rely on:


 


(i)                                    any representation, notice or document believed by it to be genuine,
correct and appropriately authorised ; and


 


(ii)                                 any statement made by a director, authorised signatory or employee of
any person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify.


 


(b)                         The
Agent and the Security Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders or, as the case may be, as
security trustee for the Finance Parties) that:


 


(i)                                    no Default has occurred (unless it has actual knowledge of a Default
arising under Clause 26.1 (Non-payment));


 


(ii)                                 any right, power, authority or discretion vested in any Party or the
Majority Lenders has not been exercised; and


 


(iii)                              any notice or request made by the Company (other than a Utilisation
Request or Selection Notice) is made on behalf of and with the consent and
knowledge of all the Obligors.


 


(c)                          Each of the Agent and the Security Agent may engage, pay for and rely on
the advice or services of any lawyers, accountants, surveyors or other experts.


 


(d)                         Each
of the Agent and the Security Agent may act in relation to the Finance
Documents through its personnel and agents.


 


(e)                          The Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this Agreement.


 


(f)                            Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent, the Security Agent nor the Arranger is obliged to
do or omit to do anything if it would or might in its reasonable opinion
constitute a breach of any law or regulation or a breach of a fiduciary duty or
duty of confidentiality.


 


29.8                   Majority Lenders’ instructions


 


(a)                          Unless a contrary indication appears in a Finance Document, the Agent
and the Security Agent shall (i) exercise any right, power, authority or
discretion vested in it as Agent or Security Agent (as the case may be) in
accordance with any instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising any right, power,
authority or discretion vested in it as Agent or Security Agent, as the case
may be) and (ii) not be liable for 


 


106

















 


any act (or omission) if it
acts (or refrains from taking any action) in accordance with an instruction of
the Majority Lenders.


 


(b)                         Unless
a contrary indication appears in a Finance Document, any instructions given by
the Majority Lenders will be binding on all the Finance Parties.


 


(c)                          Each of the Agent and the Security Agent may refrain from acting in
accordance with the instructions of the Majority Lenders (or, if appropriate,
the Lenders) until it has received such security as it may require for any
cost, loss or liability (together with any associated VAT) which it may incur
in complying with the instructions.


 


(d)                         In the
absence of instructions from the Majority Lenders (or, if appropriate, the
Lenders), each of the Agent and the Security Agent may act (or refrain from
taking action) as it considers to be in the best interest of the Lenders.


 


(e)                          Neither the Agent nor the Security Agent is  authorised to act on behalf of a Lender
(without first obtaining that Lender’s consent) in any legal or arbitration
proceedings relating to any Finance Document.


 


29.9                   Responsibility for documentation


 


Neither the Agent, the Security Agent nor the
Arranger:


 


(a)                                 is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the Security
Agent, the Arranger, an Obligor or any other person given in or in connection
with any Finance Document or the Information Memorandum; or


 


(b)                                is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in connection
with any Finance Document.


 


29.10             Exclusion of liability


 


(a)                          Without limiting paragraph (b) below (and without prejudice to the
provisions of paragraph (e) of Clause 33.11 (Disruption to Payment Systems etc)), neither the Agent nor
the Security Agent will be liable including without limitation for negligence
or any other category of liability whatsoever for any action taken by it under
or in connection with any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.


 


(b)                         No
Party (other than the Agent or the Security Agent) may take any proceedings
against any officer, employee or agent of the Agent or the Security Agent in
respect of any claim it might have against the Agent or the Security Agent or
in respect of any act or omission of any kind by that officer, employee or
agent in relation to any Finance Document and any officer, employee or agent of
the Agent or the Security Agent may rely on this Clause.


 


(c)                          Neither the Agent nor the Security Agent will be liable for any delay
(or any related consequences) in crediting an account with an amount required
under the Finance Documents to be paid by it if it has taken all necessary
steps as soon as reasonably practicable to comply with the regulations or
operating procedures of any recognised clearing or settlement system used by it
for that purpose.


 


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(d)                         Nothing
in this Agreement shall oblige the Agent or the Arranger to carry out any “know
your customer” or other checks in relation to any person on behalf of any
Lender and each Lender confirms to the Agent and the Arranger that it is solely
responsible for any such checks it is required to carry out and that it may not
rely on any statement in relation to such checks made by the Agent or the
Arranger.


 


29.11             Lenders’ indemnity to the Agent and the Security Agent


 


Each Lender shall (in
proportion to its share of the Total Commitments or, if the Total Commitments
are then zero, to its share of the Total Commitments immediately prior to their
reduction to zero) indemnify the Agent and the Security Agent, within three
Business Days of demand, against any cost, loss or liability including without
limitation for negligence or any other category of liability whatsoever
incurred by the Agent or the Security Agent (otherwise than by reason of its
gross negligence or wilful misconduct) (or in the case of any cost, loss or
liability pursuant to Clause 33.11 (Disruption
to Payment Systems etc.) notwithstanding the Agent’s negligence,
gross negligence or any other category of liability whatsoever but not
including any claim based on the fraud of the Agent) in acting as Agent or, as
the case may be, Security Agent under the Finance Documents (unless it has been
reimbursed by an Obligor pursuant to a Finance Document).


 


29.12             Resignation of the Agent or the Security Agent


 


(a)                          The Agent or the Security Agent may resign and appoint one of its
Affiliates acting through an office in the United Kingdom, Germany or Finland
as successor by giving notice to the other Finance Parties and the Company.


 


(b)                         Alternatively
the Agent or the Security Agent may resign by giving notice to the other
Finance Parties and the Company, in which case the Majority Lenders (after
consultation with the Company) may appoint a successor Agent or, as the case
may be, Security Agent in each case acting through an office in the United
Kingdom, Germany or Finland.


 


(c)                          If the Majority Lenders have not appointed a successor Agent or, as the
case may be, Security Agent in accordance with paragraph (b) above within
30 days after notice of resignation was given, the Agent or, as the case may
be, Security Agent (after consultation with the Company) may appoint a
successor Agent or Security Agent.


 


(d)                         The
retiring Agent or Security Agent shall, at its own cost, make available to its
successor such documents and records and provide such assistance as its
successor may reasonably request for the purposes of performing its functions
as Agent or Security Agent under the Finance Documents.


 


(e)                          The resignation notice of the Agent or Security Agent shall only take
effect upon the appointment of a successor.


 


(f)                            Upon the appointment of a successor, the retiring Agent or Security
Agent shall be discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause 29. Its
successor and each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if such successor had
been an original Party.


 


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(g)                         After
consultation with the Company, the Majority Lenders may, by notice to the Agent
or, as the case may be, the Security Agent, require it to resign in accordance
with paragraph (b) above.  In this
event, the Agent or, as the case may be, the Security Agent shall resign in
accordance with paragraph (b) above.


 


29.13             Confidentiality


 


(a)                          The Agent (in acting as agent for the Finance Parties) and the Security
Agent (in acting as security trustee for the Finance Parties) shall be regarded
as acting through its respective agency or security trustee division which in
each case shall be treated as a separate entity from any other of its divisions
or departments.


 


(b)                         If
information is received by another division or department of the Agent or, as
the case may be, the Security Agent, it may be treated as confidential to that
division or department and the Agent or, as the case may be, the Security Agent
shall not be deemed to have notice of it.


 


29.14             Relationship with the Lenders


 


(a)                          The Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has received
not less than five Business Days prior notice from that Lender to the contrary
in accordance with the terms of this Agreement.


 


(b)                         Each
Lender shall supply the Agent with any information required by the Agent in
order to calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory Cost  formulae).


 


29.15             Credit appraisal by the Lenders


 


Without affecting the responsibility of any
Obligor for information supplied by it or on its behalf in connection with any
Finance Document, each Lender confirms to the Agent, the Security Agent and the
Arranger that it has been, and will continue to be, solely responsible for
making its own independent appraisal and investigation of all risks arising
under or in connection with any Finance Document including but not limited to:


 


(a)                                 the financial condition, status and nature of each member of the Group;


 


(b)                                the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, Security, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Finance Document;


 


(c)                                 whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, Security, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Finance Document; and


 


(d)                                the adequacy, accuracy and/or completeness of the Information Memorandum
and any other information provided by the Agent, the Security Agent, any Party
or by any other person under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other agreement,
Security, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document.


 


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29.16             Reference Banks


 


If a Reference Bank (or, if a Reference Bank is
not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender,
the Agent shall (in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.


 


29.17             Management time of the Agent and the Security Agent


 


If an Event of Default has
occurred and is continuing, any amount payable to the Agent or the Security Agent
under Clause 18.3 (Indemnity to the Agent
and the Security  Agent), Clause 20 (Costs and expenses) and Clause 29.11 (Lenders’ indemnity to the Agent  and the Security  Agent) shall include the cost of utilising
its management time or other resources and will be calculated on the basis of
such reasonable daily or hourly rates as it may notify to the Company and the
Lenders, and is in addition to any fee paid or payable to it under Clause 15 (Fees).


 


29.18             Security Agency provisions


 


The provisions of Schedule 7 (Security Agency provisions) shall bind
each Party.


 


29.19             Deduction from amounts payable by the Agent or the Security
Agent


 


If any Party owes an amount to the Agent or the
Security Agent under the Finance Documents the Agent or the Security Agent (as
the case may be) may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent or the
Security Agent (as the case may be) would otherwise be obliged to make under
the Finance Documents and apply the amount deducted in or towards satisfaction
of the amount owed.  For the purposes of
the Finance Documents that Party shall be regarded as having received any
amount so deducted.


 


30.                         PARALLEL DEBT


 


(a)                          Each Obligor hereby irrevocably and unconditionally undertakes to pay to
the Security Agent amounts equal to any amounts owing from time to time by that
Obligor to any Finance Party under any Finance Document as and when those
amounts are due.


 


(b)                         Each
Obligor and the Security Agent acknowledge that the obligations of each Obligor
under paragraph (a) are several and are separate and independent
from, and shall not in any way affect, the corresponding obligations of that
Obligor to any Finance Party under any Finance Document (its “Corresponding Debt”) provided that:


 


(i)                                    the amounts for which each Obligor is liable under paragraph (a) (its
“Parallel Debt”) shall be
decreased to the extent that its Corresponding Debt has been irrevocably paid
or (in the case of guarantee obligations) discharged; and


 


(ii)                                 the Corresponding Debt of each Obligor shall be decreased to the extent
that its Parallel Debt has been irrevocably paid or (in the case of guarantee
obligations) discharged; and


 


(iii)                              the Parallel Debt of an Obligor shall not exceed its Corresponding Debt.


 


(c)                          For the purpose of this Clause 30, the Security Agent acts in its own
name and not as a trustee, and its claims in respect of the Parallel Debt shall
not be held on trust. The Security granted under the Secured Documents to the
Security Agent to secure the Parallel Debt is granted to the Security Agent in
its capacity as creditor of the Parallel Debt and shall not be held on trust.


 


110

















 


(d)                         All
monies received by the Security Agent pursuant to this Clause, and all amounts
received by the Security Agent from or by the enforcement of any Security
granted to secure the Parallel Debt, shall be applied in accordance with
paragraph 15 (Order of application)
of Schedule 7 (Security Agency provisions)
of this Agreement.


 


(e)                          Without limiting or affecting the Security Agent’s rights against the
Obligors (whether under this Clause or under any other provision of the Finance
Document), each Obligor acknowledges that:


 


(i)                                    nothing in this Clause shall impose any obligation on the Security Agent
to advance any sum to any Obligor or otherwise under any Finance Document,
except in its capacity as Senior Lender; and


 


(ii)                                 for the purpose of any vote taken under any Finance Document, the
Security Agent shall not be regarded as having any participation or commitment
other than those which it has in its capacity as a Lender.


 


31.                         CONDUCT OF BUSINESS BY THE FINANCE PARTIES


 


No provision of this Agreement will:


 


(a)                                 interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;


 


(b)                                oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and manner of any
claim; or


 


(c)                                 oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.


 


32.                         SHARING AMONG THE FINANCE PARTIES


 


32.1                   Payments to Finance Parties


 


If a Finance Party (a “Recovering Finance Party”) receives or recovers
any amount from an Obligor other than in accordance with Clause 33 (Payment mechanics) and applies that amount
to a payment due under the Finance Documents then:


 


(a)                                 the Recovering Finance Party shall, within three Business Days, notify
details of the receipt or recovery to the Agent;


 


(b)                                the Agent shall determine whether the receipt or recovery is in excess
of the amount the Recovering Finance Party would have been paid had the receipt
or recovery been received or made by the Agent and distributed in accordance
with Clause 33 (Payment mechanics), without
taking account of any Tax which would be imposed on the Agent in relation to
the receipt, recovery or distribution; and


 


(c)                                 the Recovering Finance Party shall, within three Business Days of demand
by the Agent, pay to the Agent an amount (the “Sharing
Payment”) equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance Party as its
share of any payment to be made, in accordance with Clause 33.5 (Partial payments).


 


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32.2                   Redistribution of payments


 


The Agent shall treat the
Sharing Payment as if it had been paid by the relevant Obligor and distribute
it between the Finance Parties (other than the Recovering Finance Party) in
accordance with Clause 33.5 (Partial
payments).


 


32.3                   Recovering Finance Party’s rights


 


(a)                          On a distribution by the Agent under Clause 32.2 (Redistribution
of payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the redistribution.


 


(b)                         If and
to the extent that the Recovering Finance Party is not able to rely on its
rights under paragraph (a) above, the relevant Obligor shall be liable to
the Recovering Finance Party for a debt equal to the Sharing Payment which is
immediately due and payable.


 


32.4                   Reversal of redistribution


 


If any part of the Sharing Payment received or
recovered by a Recovering Finance Party becomes repayable and is repaid by that
Recovering Finance Party, then:


 


(a)                                 each Finance Party which has received a share of the relevant Sharing
Payment pursuant to Clause 32.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account of that
Recovering Finance Party an amount equal to the appropriate part of its share
of the Sharing Payment (together with an amount as is necessary to reimburse
that Recovering Finance Party for its proportion of any interest on the Sharing
Payment which that Recovering Finance Party is required to pay); and


 


(b)                                that Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable to the
reimbursing Finance Party for the amount so reimbursed.


 


32.5                   Exceptions


 


(a)                          This Clause 32 shall not apply to the extent that the Recovering Finance
Party would not, after making any payment pursuant to this Clause, have a valid
and enforceable claim against the relevant Obligor.


 


(b)                         A
Recovering Finance Party is not obliged to share with any other Finance Party
any amount which the Recovering Finance Party has received or recovered as a
result of taking legal or arbitration proceedings, if:


 


(i)                                    it notified that other Finance Party of the legal or arbitration
proceedings; and


 


(ii)                                 that other Finance Party had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings.


 


32.6                   Loss sharing


 


(a)                          In this Clause:


 


“Loss Sharing Date” means the date (if any) on which the Agent
exercises any of its rights under paragraph (a)(ii) and/or (a)(iv) of
Clause 26.16 (Acceleration) or
the date (if any) on which the Facilities are cancelled under Clause 11.3 (Change of control).


 


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(b)                         If, at
any time after the Loss Sharing Date, for any reason:


 


(i)                                    any outstandings under Facility B or any Ancillary Facility will not be
repaid and/or discharged; and


 


(ii)                                 any resulting loss is not shared between the Facility B Lenders and the
Ancillary Lenders pro rata to the amount which their respective exposures,
whether drawn or undrawn, bore to their total exposure, whether drawn or
undrawn, as at the Loss Sharing Date,


 


the Facility B Lenders and the Ancillary
Lenders shall make such payments between themselves as the Agent shall require
to ensure that after taking into account such payments, any such loss is shared
between the Facility B Lenders and the Ancillary Lenders pro rata to the amount
which their respective exposures, whether drawn or undrawn, bore to their total
exposure, whether drawn or undrawn, as at the Loss Sharing Date.


 


113

















 


SECTION 11


 


ADMINISTRATION


 


33.                         PAYMENT MECHANICS


 


33.1                   Payments to the Agent


 


(a)                          On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor (subject to Clause 33.10 (Payments to the Security Agent) )or Lender
shall make the same available to the Agent (unless a contrary indication
appears in a Finance Document) for value on the due date at the time and in
such funds specified by the Agent as being customary at the time for settlement
of transactions in the relevant currency in the place of payment.


 


(b)                         Payment
shall be made to such account in the principal financial centre of the country
of that currency (or, in relation to euro, in the principal financial centre in
a Participating Member State or  London)
with such bank as the Agent specifies.


 


33.2                   Distributions by the Agent


 


Each payment received by the
Agent under the Finance Documents for another Party shall, subject to Clause
33.3 (Distributions to  an  Obligor)
and Clause 33.4 (Clawback) and
Clause 33.10 (Payments to the Security Agent),
be made available by the Agent as soon as practicable after receipt to the
Party entitled to receive payment in accordance with this Agreement (in the
case of a Lender, for the account of its Facility Office), to such account as
that Party may notify to the Agent by not less than five Business Days’ notice
with 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 Participating
Member State or London).


 


33.3                   Distributions to an Obligor


 


The Agent and the Security
Agent may (with the consent of the Obligor or in accordance with Clause 34 (Set-off)) apply any amount received by it
for that Obligor in or towards payment (on the date and in the currency and funds
of receipt) of any amount due from that Obligor under the Finance Documents or
in or towards purchase of any amount of any currency to be so applied.


 


33.4                   Clawback


 


(a)                          Where a sum is to be paid to the Agent or the Security Agent under the
Finance Documents for another Party, the Agent or, as the case may be, the
Security Agent is not obliged to pay that sum to that other Party (or to enter
into or perform any related exchange contract) until it has been able to
establish to its satisfaction that it has actually received that sum.


 


(b)                         If the
Agent or the Security Agent pays an amount to another Party and it proves to be
the case that it had not actually received that amount, then the Party to whom
that amount (or the proceeds of any related exchange contract) was paid shall
on demand refund the same to the Agent or, as the case may be, the Security
Agent together with interest on that amount from the date of payment to the
date of receipt by the Agent or, as the case may be, the Security Agent, calculated
by it to reflect its cost of funds.


 


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33.5                   Partial payments


 


(a)                          If the Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by an Obligor under the Finance Documents, the
Agent shall apply that payment towards the obligations of that Obligor under
the Finance Documents in the following order:


 


(i)                                    first, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent, the Security Agent, the Issuing Bank or the Arranger
under the Finance Documents;


 


(ii)                                 secondly, in or towards payment pro rata of any accrued interest, fee or
commission due but unpaid under this Agreement or any Ancillary Facility
Document;


 


(iii)                              thirdly, in or towards payment pro rata of any principal due but unpaid
under this Agreement or any Ancillary Facility Document and any amount due but
unpaid under Clauses 7.4 (Claims under a Letter of
Credit or Bank Guarantee) and 7.5 (Indemnities);
and


 


(iv)                             fourthly, in or towards payment pro rata of any other sum due but unpaid
under the Finance Documents or any Ancillary Finance Document,


 


provided that the Agent shall
not make any such payments to any Ancillary Lender prior to the Agent
delivering a notice to the Company pursuant to paragraphs (a) (ii) or
(a) (iv) of Clause 26.16 (Acceleration)
or any date on which the Facilities are cancelled pursuant to Clause 11.3 (Change of control).


 


(b)                         The
Agent shall, if so directed by the Majority Lenders, vary the order set out in
paragraphs (a)(ii) to (iv) above.


 


(c)                          Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.


 


33.6                   No set-off by Obligors


 


All payments to be made by an Obligor under the
Finance Documents shall be calculated and be made without (and free and clear
of any deduction for) set-off or counterclaim.


 


33.7                   Business Days


 


(a)                          Any payment which is due to be made on a day that is not a Business Day
shall be made on the next Business Day in the same calendar month (if there is
one) or the preceding Business Day (if there is not).


 


(b)                         During
any extension of the due date for payment of any principal or Unpaid Sum under
this Agreement interest is payable on the principal or Unpaid Sum at the rate
payable on the original due date.


 


33.8                   Currency of account


 


(a)                          Subject to paragraphs (b) to (e) below, the Base Currency is
the currency of account and payment for any sum due from an Obligor under any
Finance Document.


 


(b)                         A
repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or Unpaid
Sum shall be made in the currency in which that Utilisation or Unpaid Sum is
denominated on its due date.


 


(c)                          Each payment of interest shall be made in the currency in which the sum
in respect of which the interest is payable was denominated when that interest
accrued.


 


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(d)                           Each payment in respect of costs, expenses or Taxes
shall be made in the currency in which the costs, expenses or Taxes are
incurred.


 


(e)                            Any amount expressed to be payable in a currency other
than the Base Currency shall be paid in that other currency.


 


33.9                     Change of currency


 


(a)                            Unless otherwise prohibited by law, if more than one
currency or currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then:


 


(i)                                      any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or currency unit of
that country designated by the Agent (after consultation with the Company); and


 


(ii)                                   any translation from one currency or currency unit to
another shall be at the official rate of exchange recognised by the central
bank for the conversion of that currency or currency unit into the other,
rounded up or down by the Agent (acting reasonably).


 


(b)                           If a change in any currency of a country occurs, this
Agreement will, to the extent the Agent (acting reasonably and after
consultation with the Company) specifies to be necessary, be amended to comply
with any generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in currency.


 


33.10               Payments to the Security Agent


 


Notwithstanding
any other provision of any Finance Document, at any time after any Security
created by or pursuant to any Security Document becomes enforceable, the
Security Agent may require:


 


(a)                                   any Obligor to pay all sums due under any Finance
Document; or


 


(b)                                  the Agent to pay all sums received or recovered from
an Obligor under any Finance Document,


 


in
each case as the Security Agent may direct for application in accordance with
the terms of the Security Documents.


 


33.11               Disruption to Payment Systems etc.


 


If
either the Agent determines (in its discretion) that a Disruption Event has
occurred or the Agent is notified by the Company that a Disruption Event has
occurred:


 


(a)                                   the Agent may, and shall if requested to do so by the
Company, consult with the Company with a view to agreeing with the Company such
changes to the operation or administration of the Facilities as the Agent may
deem necessary in the circumstances;


 


(b)                                  the Agent shall not be obliged to consult with the
Company in relation to any changes mentioned in paragraph (a) if, in its
opinion, it is not practicable to do so in the circumstances and, in any event,
shall have no obligation to agree to such changes;


 


(c)                                   the Agent may consult with the Finance Parties in
relation to any changes mentioned in paragraph (a) but shall not be
obliged to do so if, in its opinion, it is not practicable to do so in the
circumstances;


 


116

















 


(d)                                  any such changes agreed upon by the Agent and the
Company shall (whether or not it is finally determined that a Disruption Event
has occurred) be binding upon the Parties as an amendment to (or, as the case
may be, waiver of) the terms of the Finance Documents notwithstanding the
provisions of Clause 39 (Amendments and Waivers);


 


(e)                                   the Agent shall not be liable for any damages, costs
or losses whatsoever  (including, without
limitation for negligence, gross negligence or any other category of liability
whatsoever but not including any claim based on the fraud of the Agent) arising
as a result of its taking, or failing to take, any actions pursuant to or in
connection with this Clause 33.11; and


 


(f)                                     the Agent shall notify the Finance Parties of all
changes agreed pursuant to paragraph (d) above.


 


34.                           SET-OFF


 


A
Finance Party may set off any matured obligation due from an Obligor under the
Finance Documents (to the extent beneficially owned by that Finance Party)
against any matured obligation owed by that Finance Party to that Obligor,
regardless of the place of payment, booking branch or currency of either
obligation.  If the obligations are in
different currencies, the Finance Party may convert either obligation at a
market rate of exchange in its usual course of business for the purpose of the
set-off.


 


35.                           NOTICES


 


35.1                     Communications in writing


 


Any
communication to be made under or in connection with the Finance Documents shall
be made in writing and, unless otherwise stated, may be made by fax or letter.


 


35.2                     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 for any communication
or document to be made or delivered under or in connection with the Finance
Documents is:


 


(a)                                   in the case of the Company, that identified with its
name in the signature pages below;


 


(b)                                  in the 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 it becomes a Party; and


 


(c)                                   in the case of the Agent, the Issuing Bank and the
Security Agent, that identified with its name in the signature pages below,


 


or any
substitute address, fax number or department or officer as the Party may notify
to the Agent (or the Agent may notify to the other Parties, if a change is made
by the Agent) by not less than five Business Days’ notice.


 


35.3                     Delivery


 


(a)                            Any communication or document made or delivered by one
person to another under or in connection with the Finance Documents will only
be effective:


 


(i)                                      if by way of fax, when received in legible form; or


 


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(ii)                                   if by way of letter, when it has been left at the
relevant address or five Business Days after being deposited in the post
postage prepaid in an envelope addressed to it at that address,


 


and,
if a particular department or officer is specified as part of its address
details provided under Clause 35.2 (Addresses),
if addressed to that department or officer.


 


(b)                           Any communication or document to be made or delivered
to the Agent or the Security Agent will be effective only when actually
received by the Agent and then only if it is expressly marked for the attention
of the department or officer identified with its signature below (or any
substitute department or officer as it shall specify for this purpose).


 


(c)                            All notices from or to an Obligor shall be sent
through the Agent.


 


(d)                           Any communication or document made or delivered to the
Company in accordance with this Clause will be deemed to have been made or
delivered to each of the Obligors.


 


35.4                     Notification of address and fax number


 


Promptly
upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 35.2 (Addresses)
or changing its own address or fax number, the Agent shall notify the other
Parties.


 


35.5                     Electronic communication


 


(a)                            Any communication to be made between the Agent and a
Lender or the Company under or in connection with the Finance Documents may be
made by electronic mail or other electronic means, if the Agent and the
relevant Lender or the Company:


 


(i)                                    agree that, unless and until notified to the contrary,
this is to be an accepted form of communication;


 


(ii)                                 notify each other in writing of their electronic mail address and/or any
other information required to enable the sending and receipt of information by
that means; and


 


(iii)                              notify each other of any change to their address or any other such
information supplied by them.


 


(b)                           Any electronic communication made between the Agent
and a Lender or the Company will be effective only when actually received in
readable form and in the case of any electronic communication made by a Lender
or the Company to the Agent only if it is addressed in such a manner as the
Agent shall specify for this purpose.


 


35.6                     English language


 


(a)                            Any notice given under or in connection with any
Finance Document must be in English.


 


(b)                           All other documents provided under or in connection
with any Finance Document must be:


 


(i)                                      in English; or


 


(ii)                                   if not in English, and if so required by the Agent,
accompanied by a certified English translation and, in this case, the English
translation will prevail unless the document is a constitutional, statutory or
other official document.


 


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36.                         CALCULATIONS AND CERTIFICATES


 


36.1                     Accounts


 


In any
litigation or arbitration proceedings arising out of or in connection with a
Finance Document, the entries made in the accounts maintained by a Finance
Party are prima facie evidence of the matters to which they relate.


 


36.2                   Certificates and Determinations


 


Any
certification or determination by a Finance Party of a rate or amount under any
Finance Document is, in the absence of manifest error, conclusive evidence of
the matters to which it relates.


 


36.3                   Day count convention


 


Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days or, in any case where the practice in the Relevant
Interbank Market differs, in accordance with that market practice.


 


37.                         PARTIAL INVALIDITY


 


If, at
any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.


 


38.                         REMEDIES AND WAIVERS


 


No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or
remedy.  The rights and remedies provided
in this Agreement are cumulative and not exclusive of any rights or remedies
provided by law.


 


39.                         AMENDMENTS AND WAIVERS


 


39.1                   Required consents


 


(a)                           Subject to Clause 39.2 (Exceptions) any term of the Finance Documents may be amended
or waived only with the consent of the Majority Lenders and the Obligors and
any such amendment or waiver will be binding on all Parties.


 


(b)                          The Agent may effect, on behalf of any Finance Party,
any amendment or waiver permitted by this Clause.


 


39.2                   Exceptions


 


(a)                            An amendment or waiver that has the effect of changing
or which relates to:


 


(i)                                      the definition of “Majority Lenders” in Clause 1.1 (Definitions);


 


(ii)                                   an extension to the date of payment of any amount
under the Finance Documents (other than an amount owing under Clause 11.5 (Mandatory prepayment – Net Sale Proceeds) or Clause 11.7 (Mandatory prepayment – Insurance Proceeds);


 


119

















 


(iii)                              a reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission payable;


 


(iv)                             an increase in or an extension of any Commitment;


 


(v)                                a change to the Borrowers or Guarantors other than in
accordance with Clause 28 (Changes to the Obligors);


 


(vi)                             any provision which expressly requires the consent of all the Lenders;


 


(vii)                          Clause 2.2 (Finance Parties’ rights
and obligations), Clause 11.3 (Change of Control),
Clause 27 (Changes to the Lenders), Clause 32 (Sharing among the Finance Parties) or this Clause 39; or


 


(viii)                       the
release of any Security created pursuant to any Security Document or of any
asset charged thereunder (except as provided in any Security Document or made
pursuant to a Permitted Disposal),


 


shall
not be made without the prior consent of all the Lenders.


 


(b)                           An amendment or waiver which relates to the rights or
obligations of the Agent, the Security Agent, the Issuing Bank, any Ancillary
Lender or the Arranger may not be effected without the consent of the Agent,
the Security Agent, the Issuing Bank, any Ancillary Lender or, as the case may
be the Arranger.


 


40.                         COUNTERPARTS


 


Each
Finance Document may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on a single copy
of the Finance Document.


 


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SECTION 12


 


GOVERNING LAW
AND ENFORCEMENT


 


41.                         GOVERNING LAW


 


This
Agreement is governed by English law.


 


42.                         ENFORCEMENT


 


42.1                   Jurisdiction


 


(a)                            The courts of England have exclusive jurisdiction to
settle any dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination of this
Agreement) (a “Dispute”).


 


(b)                           The Parties agree that the courts of England are the
most appropriate and convenient courts to settle Disputes and accordingly no
Party will argue to the contrary.


 


(c)                            This Clause 42.1 is for the benefit of the Finance
Parties only.  As a result, no Finance
Party shall be prevented from taking proceedings relating to a Dispute in any
other courts with jurisdiction.  To the
extent allowed by law, the Finance Parties may take concurrent proceedings in
any number of jurisdictions.


 


42.2                   Service of process


 


Without
prejudice to any other mode of service allowed under any relevant law, each
Obligor (other than an Obligor incorporated in England and Wales):


 


(a)                                   irrevocably appoints Clifford Chance Secretaries
Limited at 10, Upper Bank Street, London E14 5JJ as its agent for service of
process in relation to any proceedings before the English courts in connection
with any Finance Document; and


 


(b)                                  agrees that failure by a process agent to notify the
relevant Obligor of the process will not invalidate the proceedings concerned.


 


This Agreement has been entered into on the date stated at
the beginning of this Agreement.


 


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SCHEDULE 1


 


THE ORIGINAL PARTIES


 


PART I


 


THE ORIGINAL OBLIGORS


 


	
  Name of Original Borrower

  	
   

  	
  Registration number (or
  equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  SACHTLEBEN
  CHEMIE GMBH

  	
   

  	
  HR B
  1 96 69

  
	
   

  	
   

  	
   

  
	
  FINNISH
  HOLDCO

  	
   

  	
  2196924-0

  
	
   

  	
   

  	
   

  
	
  KEMIRA
  PIGMENTS OY

  	
   

  	
  0948159-2

  



 


	
  Name of Original Guarantor

  	
   

  	
  Registration number (or
  equivalent, if any)

  
	
   

  	
   

  	
   

  
	
  SACHTLEBEN
  CHEMIE GMBH

  	
   

  	
  HR B
  1 96 69

  
	
   

  	
   

  	
   

  
	
  FINNISH
  HOLDCO

  	
   

  	
  2196924-0

  
	
   

  	
   

  	
   

  
	
  KEMIRA
  PIGMENTS OY

  	
   

  	
  0948159-2

  



 


122

















 


PART II


 


THE ORIGINAL LENDERS


 


	
  Name of Original Lender

  	
   

  	
  Facility A Commitment

  (€)

  	
   

  	
  Facility B Commitment

  (€)

  
	
  Skandinaviska
  Enskilda Banken AB (publ)

  	
   

  	
  150,000,000

  	
   

  	
  15,000,000

  
	
  Nordea
  Bank Finland Plc

  	
   

  	
  150,000,000

  	
   

  	
  15,000,000

  



 


123

















 


SIGNATURE
PAGES


 


The  Company


 


Deukalion
Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH


 


	
  Address:

  	
  Dr. –
  Rudolf – Sachtleben – Str. 4

  
	
   

  	
  47198,
  Duisburg

  
	
   

  	
  Germany

  
	
   

  	
   

  
	
  Fax:
  +49 (2066) 22-3201

  



 


	
  Email:
  w.d.griebler@sachtleben.de

  
	
   

  
	
  Attention:
  Wolf-Dieter Griebler

  
	
   

  
	
  By:

  	
  /s/ DR
  MARCUS BRUNE

  	
   

  
	
   

  	
  Dr.
  Marcus Brune

  
	
   

  	
   

  
	
   

  	
   

  
	
  The  Original Borrowers

  
	
   

  
	
  Deukalion
  Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH

  
	
   

  
	
  By:

  	
  /s/ DR
  MARCUS BRUNE

  	
   

  
	
   

  	
  Dr
  Marcus Brune

  
	
   

  	
   

  
	
   

  	
   

  
	
  Sachtleben
  Chemie GmbH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ DR
  MARTIN BURGHOLTE

  	
   

  	
  /s/
  PROF WOLF-DIETER GRIEBLER

  
	
   

  	
  Dr
  Martin Burgholte

  	
   

  	
  Prof
  Wolf-Dieter Griebler

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  White
  Pigments Holding Oy

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/
  UDO PINGER

  	
   

  
	
   

  	
  Udo
  Pinger

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Kemira
  Pigments Oy

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  HANNU VIROLAINEN

  	
   

  
	
   

  	
  Hannu
  Virolainen

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The  Original Guarantors

  	
   

  
	
   

  	
   

  
	
  Deukalion
  Einhundertvierundzwanzigste Vermögensverwaltungs - GmbH

  
	
   

  	
   

  
	
  By: 

  	
  /s/
  DR MARCUS BRUNE

  	
   

  
	
   

  	
  Dr
  Marcus Brune

  	
   

  



 


124

















 


	
  Sachtleben
  Chemie GmbH

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ DR
  MARTIN BURGHOLTE

  	
   

  	
  /s/ PROF
  WOLF-DIETER GRIEBLER

  
	
   

  	
  Dr Martin
  Burgholte

  	
   

  	
  Prof
  Wolf-Dieter Griebler

  
	
   

  	
   

  
	
   

  	
   

  
	
  White
  Pigments Holding Oy

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ UDO
  PINGER

  	
   

  
	
   

  	
  Udo
  Pinger

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Kemira
  Pigments Oy

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ HANNU
  VIROLAINEN

  	
   

  
	
   

  	
  Hannu
  Virolainen

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Arranger

  	
   

  
	
   

  	
   

  
	
  Merchant
  Banking, Skandinaviska Enskilda Banken AB (publ)

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ MALCOLM
  CROW

  	
   

  	
  /s/ ÄSA
  SAMUELSSON

  
	
   

  	
  Malcolm
  Crow

  	
   

  	
  Äsa Samuelsson

  
	
   

  	
   

  
	
   

  	
   

  
	
  Nordea
  Bank Finland plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ ESA
  RAITANEN

  	
   

  	
  /s/ JUHA-MATTI
  PELTOMAA

  
	
   

  	
  Esa Raitanen

  	
   

  	
  Juha-Matti
  Peltomaa

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Original Lenders

  	
   

  
	
   

  	
   

  
	
  Skandinaviska
  Enskilda Banken AB (publ)

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ MALCOLM
  CROW

  	
   

  	
  /s/ ÄSA
  SAMUELSSON

  
	
   

  	
  Malcolm
  Crow

  	
   

  	
  Äsa Samuelsson

  
	
   

  	
   

  
	
   

  	
   

  
	
  Nordea
  Bank Finland Plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  ESA RAITANEN

  	
   

  	
  /s/ JUHA-MATTI
  PELTOMAA

  
	
   

  	
  Esa Raitanen

  	
   

  	
  Juha-Matti
  Peltomaa

  
						



 


125

















 


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/ MALCOLM
  CROW

  	
   

  	
  /s/ ÄSA
  SAMUELSSON

  
	
   

  	
  Malcolm
  Crow

  	
   

  	
  Äsa
  Samuelsson

  
						



 


 


The  Security Agent


 


Merchant
Banking, Skandinaviska Enskilda Banken AB (publ)


 


	
  Address:

  	
   

  	
  Loan
  Agency

  
	
   

  	
   

  	
  Capital
  Markets, SEB

  
	
   

  	
   

  	
  Scandinavian
  House

  
	
   

  	
   

  	
  2 Cannon
  Street

  
	
   

  	
   

  	
  London
  EC4M 6XX

  
	
   

  	
   

  	
   

  
	
  E-mail:

  	
   

  	
  agency@seb.co.uk

  
	
  Fax
  number:

  	
   

  	
  + 44
  207 329 2304

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Loan
  Agency

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ MALCOLM
  CROW

  	
   

  	
  /s/ ÄSA
  SAMUELSSON

  
	
   

  	
  Malcolm
  Crow

  	
   

  	
  Äsa
  Samuelsson

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The  Issuing Bank

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Merchant
  Banking, Skandinaviska Enskilda Banken AB (publ)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ MALCOLM
  CROW

  	
   

  	
  /s/ ÄSA
  SAMUELSSON

  
	
   

  	
  Malcolm
  Crow

  	
   

  	
  Äsa
  Samuelsson

  
						



 


126