Exhibit 4.6
 EUR 1,500,000,000
 CREDIT FACILITY AGREEMENT
  SAP AG
  DEUTSCHE BANK AG
 J.P. MORGAN PLC
 THE ROYAL BANK OF SCOTLAND PLC
  DEUTSCHE BANK LUXEMBOURG S.A.
    
 SYNDICATED REVOLVING
CREDIT FACILITY AGREEMENT




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CONTENTS
 CLAUSE
    
    PAGE1. Definitions and Interpretation
    
    
    12. The Facility
    
    
    163. Purpose
    
    
    194. Conditions of Utilisation
    
    
    195. Utilisation
    
    
    216. Optional Currencies
    
    
    227. Repayment
    
    
    238. Prepayment and Cancellation
    
    
    249. Interest
    
    
    2810. Interest Periods
    
    
    2911. Changes to the Calculation of Interest
    
    
    2912. Fees
    
    
    3113. Tax Gross up and Indemnities
    
    
    3314. Increased Costs
    
    
    3815. Other Indemnities
    
    
    3916. Mitigation by the Lenders
    
    
    4117. Costs and Expenses
    
    
    4118. Representations
    
    
    4319. Information Undertakings
    
    
    4620. General Undertakings
    
    
    5221. Events of Default
    
    
    5622. Changes to the Lenders
    
    
    6123. Changes to the Borrower
    
    
    6724. Role of the Agent and the Mandated Lead Arrangers
    
    
    68
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CLAUSE
    
    PAGE25. Conduct of Business by the Finance Parties
    
    
    7526. Sharing Among the Finance Parties
    
    
    7527. Payment Mechanics
    
    
    7828. Set-off
    
    
    8129. Notices
    
    
    8130. Calculations and Certificates
    
    
    8331. Partial Invalidity
    
    
    8332. Remedies and Waivers
    
    
    8433. Amendments and Waivers
    
    
    8434. Confidentiality
    
    
    8635. Governing Law
    
    
    9336. Jurisdiction
    
    
    9337. Conclusion of this Agreement (Vertragsschluss)
    
    
    93SCHEDULE 1 The Original Lenders
    
    
    94SCHEDULE 2 Conditions Precedent
    
    
    96SCHEDULE 3 Requests
    
    
    97SCHEDULE 4 Mandatory Cost Formulae
    
    
    99SCHEDULE 5 Forms of Transfer and Assignment Certificates
    
    
    103SCHEDULE 6 Existing Security
    
    
    109SCHEDULE 7 Confidentiality Undertaking
    
    
    110SCHEDULE 8 Timetables
    
    
    115SCHEDULE 9 Reservations
    
    
    117SCHEDULE 10 Form of Increase Confirmation
    
    
    120SIGNATURES
    
    
    123
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THIS AGREEMENT
 (1)
    
    SAP AG(the Borrower);(2)
    
    DEUTSCHE BANK AG, J.P. MORGAN PLCand THE ROYAL BANK OF SCOTLAND PLC(the Mandated Lead
Arrangers);(3)
    
    THE FINANCIAL INSTITUTIONSlisted in Schedule 1 as lenders (the
Original Lenders); and(4)
    
    DEUTSCHE BANK LUXEMBOURG S.A.as agent of the other Finance Parties (the Agent).
 IT IS AGREED
 SECTION 1
INTERPRETATION
 1.
    
    DEFINITIONS AND INTERPRETATION1.1
    
    DefinitionsIn this Agreement:Additional Cost Rate has the meaning given to it in Schedule 4 (Mandatory Cost
formulae).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 European foreign exchange market at
or about 12:00 noon on a particular day.Approval means the approval (Zustimmung) to a Utilisation granted by the supervisory
board of the Borrower.Assignment Certificate means a certificate substantially in the form set out in Part II
(Form of Assignment Certificate)of Schedule 5 (Forms of Transfer and Assignment
Certificates) or in any other form agreed between the Agent and the Borrower.Assignment Date means, in relation to an assignment pursuant to Clause 22.2(d)
(Conditions of assignment or assignment and transfer by assumption of contract
(Vertragsübernahme)), the later of:
 
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(a)
    
    the proposed Assignment Date specified in the Assignment Certificate; and(b)
    
    the date on which the Agent accepts the Assignment Certificate.
 Authorisation
 Availability Period
 Available Commitment
 (a)
    
    the Base Currency Amount of its participation in any outstanding Loans; and(b)
    
    in relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Loans that are due to be made on or before the proposed Utilisation
Date,
  Available Facility
 Base Currency
 Base Currency Amount
 Break Costs
 (a)
    
    the interest (but excluding 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;
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(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
European 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
 (a)
    
    (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; or(b)
    
    (in relation to any date for payment or purchase of euro) any TARGET Day.
 Commitment
 (a)
    
    in relation to an Original Lender, the amount in the Base Currency set opposite its
name under the heading Commitment in Schedule 1 (The Original Lenders) and the amount
of any other Commitment transferred to it under this Agreement or assumed by it in
accordance with Clause 2.2 (Increase); and(b)
    
    in relation to any other Lender, the amount in the Base Currency of any Commitment
transferred to it under this Agreement or assumed by it in accordance with Clause 2.2
(Increase),
  Confidential Information
 (a)
    
    any member of the Group or any of its advisers; or(b)
    
    another Finance Party, if the information was obtained by that Finance Party directly
or indirectly from any member of the Group or any of its advisers,
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(i)
    
    is or becomes public information other than as a direct or indirect result of any
breach by that Finance Party of Clause 34 (Confidentiality); or(ii)
    
    is identified in writing at the time of delivery as non-confidential by any member
of the Group or any of its advisers; or(iii)
    
    is known (and has been lawfully obtained) by that Finance Party before the date the
information is disclosed to it in accordance with paragraphs (a) or (b) above or is
lawfully obtained by that Finance Party after that date, from a source which is, as far as
that Finance Party is aware, unconnected with the Group and which, in either case, as far
as that Finance Party is aware, has not been obtained in breach of, and is not otherwise
subject to, any obligation of confidentiality.
 Confidentiality Undertaking Confidentiality Undertaking
 Default Events of Default
 Defaulting Lender
 (a)
    
    which has:
 (i)
    
    failed to make its participation in a Loan available in accordance with
Clause 5.4 (Lenders participation) unless such failure is caused by
administrative or technical error and payment is made within 5 Business Days of
its due date; or(ii)
    
    notified the Agent that it will not make its participation in a Loan
available by the Utilisation Date of that Loan in accordance with Clause 5.4
(Lenders participation),
  (b)
    
    which has otherwise rescinded or repudiated a Finance Document or has expressly
declared its intention to rescind or repudiate a Finance Document;
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(c)
    
    in respect of which there has been appointed a liquidator, receiver, administrator,
administrative receiver, compulsory manager or other similar officer (other than, in
relation to a Dutch Lender, the appointment of a trustee (curator) under or pursuant
article 1:76 of the Dutch Act on Financial Supervision (Wet op het financieel toezicht)
to the extent that such appointment is not publicly disclosed); or(d)
    
    in respect of which a moratorium or any other measure under section 46a of the German
Banking Act (Kreditwesengesetz) is imposed or a similar or related measure is taken by a
competent regulator in any other jurisdiction.
 EURIBOR
 (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 request quoted by the Reference Banks to leading banks in the European interbank
market;
  Event of Default Events
of Default
 Existing 2004 Facility
 Facility The Facility
 Facility Office
 Fee Letter Fees
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Finance Document
 Finance Parties
 Financial Indebtedness
 (a)
    
    monies borrowed;(b)
    
    any amount raised by acceptance under any acceptance credit facility or
dematerialised equivalent;(c)
    
    any amount raised pursuant to the issue of bonds, notes, debentures or any similar
instrument;(d)
    
    the amount of any liability in respect of any lease or hire purchase contract which
would, in accordance with GAAP, be treated as a finance or capital lease;(e)
    
    receivables sold or discounted (other than any receivables to the extent they are
sold on a non-recourse basis);(f)
    
    any currency or interest derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price of any currency or
interest rate (and, when calculating the value of any derivative transaction, only the
marked to market value shall be taken into account);(g)
    
    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
institution; and(h)
    
    (without double counting) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a) to (g) above,
 Cross Default Cross Default
 French Company
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GAAP German GAAP
 (a)
    
    in respect of any consolidated financial statements of the Group GAAP means U.S.
GAAP or IFRS or any other accounting principles which the Borrower may legally be
required to adhere to; and(b)
    
    in respect of any unconsolidated financial statements of the Borrower GAAP includes
IFRS if such unconsolidated financial statements are permitted by applicable law to be
prepared on such basis instead of German GAAP.
 Group
 Holding Company
 IFRS
 Increase Confirmation Form of Increase Confirmation
 Increase Lender Increase
 Information Package
 Interest Period Interest Periods Default interest
 Lender
 (a)
    
    any Original Lender; and(b)
    
    any bank, financial institution, trust, fund or other entity which has become a Party
in accordance with Clause 2.2 (Increase) or Clause 22 (Changes to the Lenders),
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LIBOR
 (a)
    
    the applicable Screen Rate; or(b)
    
    (if no Screen Rate is available for the currency or Interest Period of that Loan and
in the case of Sterling) 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,
  LMA
 Loan
 Luxembourg
 Majority Lenders
 (a)
    
    if there are no Loans then outstanding, a Lender or Lenders whose Commitments
aggregate 662/3% or more of the Total Commitments (or, if the Total
Commitments have been reduced to zero, aggregated 662/3% or more of the Total
Commitments immediately prior to the reduction); or(b)
    
    at any other time, a Lender or Lenders whose participations in the Loans then
outstanding aggregate 662/3% or more of all the Loans then outstanding.
 Mandate Letter
 Mandatory Cost Mandatory Cost formulae
 Margin
 (a)
    
    1.10 per cent. per annum; or
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(b)
    
    in relation to any Loan with an Interest Period that includes 31 December 2009 and 1
January 2010 and for that Interest Period only (if and to the extent such Loan remains
outstanding during such Interest Period), 1.50 per cent. per annum.
 Material Adverse Effect
 (a)
    
    the ability of the Borrower to perform its payment obligations under the Finance
Documents; or(b)
    
    the validity and/or enforceability of the Finance Documents.
 Material Subsidiary
 (a)
    
    whose unconsolidated turnover represents five per cent. or more of the consolidated
turnover of the Group, however, excluding SAP Public Services Inc.; or(b)
    
    which has been determined by the Borrower as additional Material Subsidiary in
accordance with Clause 20.9 (Minimum Coverage Test) to meet the Minimum Coverage Test.
 Financial statements and Material Subsidiaries list
 Conditions
precedent Financial statements and
Material Subsidiaries list
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Financial statements and Material Subsidiaries list
 Minimum Coverage Test Minimum Coverage Test
 Month
 (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.
  Optional Currency Conditions relating to Optional Currencies
 Original Financial Statements
 Participating Member State
 Party
 Qualifying Lender Definitions
 Quotation Day
 (a)
    
    (for the Base Currency) two TARGET Days before the first day of that period; or(b)
    
    (for any Optional Currency) two Business Days (provided that for the purposes of this
paragraph (b) the definition of Business Day shall be
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deemed to include a reference to London) before the first day of that period,
  Reference Banks
 Related Fund first fund
 Repeating Representations Status Governing law and enforcement No default Financial Statements No proceedings pending or threatened
 Representative
 Reservations Reservations
 Rollover Loan
 (a)
    
    made or to be made on the same day that a maturing Loan is due to be repaid;(b)
    
    the aggregate amount of which is equal to or less than the maturing Loan;(c)
    
    in the same currency as the maturing Loan (unless it arose as a result of the
operation of Clause 6.2 (Unavailability of a currency)); and(d)
    
    made or to be made for the purpose of refinancing a maturing Loan.
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Screen Rate
 (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,
  Security dingliche
Sicherheit
 Specified Time Timetables
 Subsidiary Aktiengesetz
 TARGET2
 TARGET Day
 Tax
 Termination Date
 Total Commitments
 Transfer Certificate Form of Transfer Certificate Forms of Transfer and Assignment
Certificates
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Transfer Date Vertragsübernahme Procedure for assignment and transfer by
assumption of contract (Vertragsübernahme)
 (a)
    
    the proposed Transfer Date specified in the Transfer Certificate; and(b)
    
    the date on which the Agent accepts the Transfer Certificate.
 Unpaid Sum
 U.S. Company
 Utilisation
 Utilisation Date
 Utilisation Request Requests
 VAT Umsatzsteuer
 1.2
    
    Construction
 (a)
    
    Unless a contrary indication appears any reference in this Agreement to:
 (i)
    
    the Agent, any Mandated Lead Arranger, any Finance Party, any Lender,
the Borrower or any Party 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;(iii)
    
    a company or corporation includes a partnership;(iv)
    
    director includes any statutory legal representative(s) (organschaftlicher
Vertreter) of a person pursuant to the laws of its jurisdiction of incorporation,
including but not limited to, in relation to a person incorporated or established
in Germany, a managing director (Geschäftsführer) or member of the board of
directors (Vorstand);
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(v)
    
    a Finance Document or any other agreement or instrument is a reference to
that Finance Document or other agreement or instrument as amended, supplemented,
extended or restated;(vi)
    
    gross negligence means grobe
Fahrlässigkeit and wilful misconduct means
Vorsatz;(vii)
    
    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;(viii)
    
    know your customer checks is a reference to the identification checks
that a Finance Party requests in order to meet its obligations under any
applicable law or regulation to identify a person who is (or is to become) its
customer;(ix)
    
    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);(x)
    
    promptly is to be construed as unverzüglich (without undue delay) as
contemplated for in the first paragraph of section 121 of the German Civil Code
(Bürgerliches Gesetzbuch);(xi)
    
    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;(xii)
    
    a provision of law is a reference to that provision as amended or
re-enacted; and(xiii)
    
    a time of day is a reference to Luxembourg 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 (including an Event of Default) is continuing if it has not been remedied
or waived.
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1.3
    
    Currency Symbols and DefinitionsEUR and euro means the single currency adopted by the Participating Member States and
£ and Sterling denote lawful currency of the United Kingdom.1.4
    
    This Agreement is made in the English language. For the avoidance of doubt, the English
language version of this Agreement shall prevail over any translation of this Agreement. However,
where a German or French translation of a word or phrase appears in the text of this Agreement,
the German or French translation of such word or phrase shall prevail.
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SECTION 2
THE FACILITY
 2.
    
    THE FACILITY2.1
    
    The FacilitySubject to the terms of this Agreement, the Lenders make available to the Borrower a
revolving loan facility in an aggregate amount equal to the Total Commitments.2.2
    
    Increase
 (a)
    
    The Borrower may by giving prior notice to the Agent after the effective date of a
cancellation of:
 (i)
    
    the Available Commitment of a Defaulting Lender in accordance with paragraph
(f) of Clause 8.5 (Right of replacement or repayment and cancellation in relation
to a single Lender); or(ii)
    
    the Commitment of a Lender in accordance with Clause 8.1 (Illegality),
  (i)
    
    the increased Commitments will be assumed by one or more Lenders or other
banks, financial institutions, trusts, funds or other entities (each an Increase
Lender) selected by the Borrower (each of which shall not be a member of the
Group) and each of which confirms its willingness to assume and does assume all
the obligations of a Lender corresponding to that part of the increased
Commitments which it is to assume, as if it had been an Original Lender;(ii)
    
    the Borrower and any Increase Lender shall assume obligations towards one
another and/or acquire rights against one another (in relation to the part of the
increased Commitments which the Increase Lender assumes) as the Borrower and the
Increase Lender would have assumed and/or acquired had the Increase Lender been an
Original Lender and had the increased Commitments been original Commitments;(iii)
    
    each Increase Lender which is not a Lender shall become a Party as a
Lender and any Increase Lender and each of the other
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Finance Parties shall assume obligations towards one another and acquire
rights against one another (in relation to the part of the increased
Commitments which the Increase Lender assumes) as that Increase Lender
and those Finance Parties would have assumed and/or acquired had the
Increase Lender been an Original Lender and had the increased Commitments
been original Commitments;
 (iv)
    
    the Commitments of the other Lenders and, if the Increase Lender is already
a Lender, its existing Commitment, shall continue in full force and effect; and(v)
    
    any increase in the Total Commitments shall take effect on the date specified
by the Borrower in the notice referred to above or any later date on which the
conditions set out in paragraph (b) below are satisfied.
 (b)
    
    An increase in the Total Commitments will only be effective on:
 (i)
    
    the execution by the Agent of an Increase Confirmation from the relevant
Increase Lender; and(ii)
    
    in relation to an Increase Lender which is not a Lender immediately prior to
the relevant increase: the performance by the Agent of all necessary know your
customer or other similar checks under all applicable laws and regulations in
relation to the assumption of the increased Commitments by that Increase Lender,
the completion of which the Agent shall promptly notify to the Borrower and the
Increase Lender.
 (c)
    
    Each Increase Lender, by executing the Increase Confirmation, confirms (for the
avoidance of doubt) that the Agent has authority to execute on its behalf any amendment
or waiver that has been approved by or on behalf of the requisite Lender or Lenders in
accordance with this Agreement on or prior to the date on which the increase becomes
effective.(d)
    
    Unless the Agent otherwise agrees or the increased Commitment is assumed by an
existing Lender, the Increase Lender shall, on the date upon which the increase takes
effect, pay to the Agent (for its own account) a fee of EUR 3,000.(e)
    
    The Borrower may pay to the Increase Lender a fee in the amount and at the times
agreed between the Borrower and the Increase Lender in a letter between the Borrower and
the Increase Lender setting out that fee.
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A reference in this Agreement to a Fee Letter shall include any letter referred to
in this paragraph.
 (f)
    
    Clause 22.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis
mutandisin this Clause 2.2 in relation to an Increase Lender as if references in that
Clause to:
 (i)
    
    an Existing Lender were references to all the Lenders immediately prior to
the relevant increase;(ii)
    
    the New Lender were references to that Increase Lender; and(iii)
    
    a re-assignment and re-transfer by assumption of contract
(Vertragsübernahme) and re-assignment were references to respectively an
assignment and transfer by assumption of contract (Vertragsübernahme) and
assignment.
 (g)
    
    No Commitment of a Lender shall be increased without the prior consent of that Lender
(acting in its absolute discretion).(h)
    
    With respect to any Utilisation, any increase of a Commitment pursuant to this Clause
2.2 shall be taken into account for all purposes of this Agreement (including for purposes
of the operation of Clause 5.4 (Lenders participation)) (including, for the avoidance of
doubt, in relation to any Rollover Loan) only if the relevant Utilisation Request is
delivered on or after the Business Day on which such increase takes effect in accordance
with the provisions of this Clause 2.2.
 2.3
    
    Finance Parties rights and obligations
 (a)
    
    The obligations of each Finance Party under the Finance Documents are several and do
not constitute a joint obligation (Ausschluss der gesamtschuldnerischen Haftung). 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 do not constitute a joint creditorship (Ausschluss der
Gesamtgläubigerschaft) and any debt arising under the Finance Documents to a Finance Party
from the Borrower shall be a separate and independent debt.
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(c)
    
    A Finance Party may, except as otherwise stated in the Finance Documents, separately
enforce its rights under the Finance Documents.
 3.
    
    PURPOSE3.1
    
    PurposeThe Borrower shall apply all amounts borrowed by it under the Facility for general
corporate purposes.3.2
    
    MonitoringNo Finance Party is bound to monitor or verify the application of any amount borrowed
pursuant to this Agreement.4.
    
    CONDITIONS OF UTILISATION4.1
    
    Initial conditions precedentThe Borrower may not deliver a Utilisation Request unless the Agent has received all of
the documents and other evidence listed in Schedule 2 (Conditions precedent) in form and
substance satisfactory to the Agent. The Agent shall notify the Borrower 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 on the proposed Utilisation Date:
 (i)
    
    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(ii)
    
    the Repeating Representations to be made by the Borrower are true in all
material respects.
 (b)
    
    If the Borrower has stated in the Utilisation Request that the requested Utilisation
requires an Approval, the Lenders will only be obliged to comply with Clause 5.4 (Lenders
participation) if the Agent has been provided with evidence in form and substance
satisfactory to the Agent that such Approval has been duly granted and is effective on the
date of the Utilisation Request provided that a written confirmation by in-house legal
counsel to the Borrower stating that the Approval required for the requested Utilisation
has been duly granted and is
effective on the date of the Utilisation Request shall satisfy the requirement to provide
satisfactory evidence referred to above.
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4.3
    
    Conditions relating to Optional Currencies
 (a)
    
    A currency will constitute an Optional Currency in relation to a Loan if:
 (i)
    
    it is readily available in the amount required and freely convertible into the
Base Currency in the European interbank market on the Quotation Day and the
Utilisation Date for that Loan; and(ii)
    
    it is approved by the Agent (acting on the instructions of all the Lenders)
with respect to that Loan (including, for the avoidance of doubt, any Rollover
Loan) and such approval has been confirmed to the Borrower by the Specified Time
as contemplated under paragraph (b) below.
 (b)
    
    If the Agent has received by the Specified Time a written request from the Borrower
for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to the
Borrower by the Specified Time:
 (i)
    
    whether or not the Lenders have granted their approval with respect to the
relevant Loan; and(ii)
    
    if approval has been granted, the minimum amount (and, if required, integral
multiples) for any subsequent Utilisation in that currency.
 4.4
    
    Maximum number of Loans
 (a)
    
    The Borrower may not deliver a Utilisation Request if, as a result of the proposed
Utilisation, 16 or more Loans would be outstanding.(b)
    
    Any Loan made by a single Lender under Clause 6.2 (Unavailability of a currency) shall
not be taken into account in this Clause 4.4.
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SECTION 3
UTILISATION
 5.
    
    UTILISATION5.1
    
    Delivery of a Utilisation RequestThe Borrower may utilise the Facility 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 is irrevocable and will not be regarded as having been duly
completed unless:
 (i)
    
    the proposed Utilisation Date is a Business Day within the Availability
Period;(ii)
    
    the currency and amount of the Utilisation comply with Clause 5.3 (Currency
and amount);(iii)
    
    the proposed Interest Period complies with Clause 10 (Interest Periods); and(iv)
    
    it states whether the Utilisation requested requires an Approval.
 (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 an
Optional Currency.(b)
    
    The amount of the proposed Loan must be:
 (i)
    
    if the currency selected is the Base Currency, a minimum of EUR 20,000,000
and, if more, an integral multiple of EUR 5,000,000 or, if less, the Available
Facility; or(ii)
    
    if the currency selected is an Optional Currency, the minimum amount (and, if
required, the 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(iii)
    
    in any event such that its Base Currency Amount is less than or equal to the
Available Facility.
 21




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5.4
    
    Lenders participation
 (a)
    
    If the conditions set out in this Agreement have been met, and subject to Clause 7
(Repayment), 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, the duration of the Interest Period relating to each Loan,
the amount of its participation in that Loan and if different, the amount of that
participation to be made available in cash, in each case by the Specified Time.
 6.
    
    OPTIONAL CURRENCIES6.1
    
    Selection of currencyThe Borrower shall select the currency of a Loan in a Utilisation Request.6.2
    
    Unavailability of a currencyIf 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,
  6.3
    
    Participation in a LoanEach Lenders participation in a Loan will be determined in accordance with paragraph (b)
of Clause 5.4 (Lenders participation).
 22




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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
 7.
    
    REPAYMENT
 (a)
    
    The Borrower shall repay each Loan on the last day of its Interest Period.(b)
    
    Without prejudice to the Borrowers obligation under paragraph (a) above, if one or
more Loans are to be made available to the Borrower:
 (i)
    
    on the same day that a maturing Loan is due to be repaid by the Borrower;(ii)
    
    in the same currency as the maturing Loan (unless it arose as a result of the
operation of Clause 6.2 (Unavailability of a currency)); and(iii)
    
    in whole or in part for the purpose of refinancing the maturing Loan;
  (A)
    
    if the amount of the maturing Loan exceeds the aggregate amount of the new
Loans:
 (1)
    
    the Borrower will only be required to pay an amount in cash in the
relevant currency equal to that excess; and(2)
    
    each Lenders participation (if any) in the new Loans shall be
treated as having been made available and applied by the Borrower in or
towards repayment of that Lenders participation (if any) in the maturing
Loan and that Lender will not be required to make its participation in
the new Loans available in cash; and
 (B)
    
    if the amount of the maturing Loan is equal to or less than the aggregate
amount of the new Loans:
 (1)
    
    the Borrower will not be required to make any payment in cash; and(2)
    
    each Lender will be required to make its participation in the new
Loans available in cash only to the extent that its participation (if
any) in the new Loans exceeds that Lenders participation (if any) in the
maturing Loan and
 23




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the remainder of that Lenders participation in the new Loans
shall be treated as having been made available and applied by the
Borrower in or towards repayment of that Lenders participation
in the maturing Loan.
 8.
    
    PREPAYMENT AND CANCELLATION8.1
    
    IllegalityIf, at any time, it becomes unlawful in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to fund or maintain
its participation in any Loan:
 (a)
    
    that Lender shall promptly notify the Agent upon becoming aware of that event;(b)
    
    upon the Agent notifying the Borrower, the Commitment of that Lender will be
immediately cancelled; and(c)
    
    the Borrower shall repay that Lenders participation in the Loans made to the Borrower
on the last day of the Interest Period for each Loan occurring after the Agent has
notified the Borrower 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).
 8.2
    
    Change of control
 (a)
    
    If a person or group of persons acting in concert should in the future directly or
indirectly acquire more than 50 per cent. of the shares which carry the right to vote in
the Borrower, the Borrower shall promptly after having become aware of the described
change of control notify the Agent thereof.(b)
    
    Upon such receipt of notification the Majority Lenders shall have the right by giving
notice to that effect through the Agent to the Borrower within a period of 15 days
following the receipt of such notification of the change of control by the Borrower to
require the cancellation of the Available Facility and the repayment of all Loans on the
date(s) which is (are) the earlier of (i) the date falling 60 days after such request and
(ii) the last day of the then current Interest Period(s), provided that the Borrower may
within five days after the receipt of such notification by the Agent request that the
Lenders shall enter into good faith negotiations with the Borrower for a period no longer
than 30 days from the date of the Borrowers request with a view to agreeing a basis on
which the Facility can be continued. If such agreement is reached between the Majority
Lenders and the Borrower the Facility shall be continued on the agreed basis between such
Lenders with cancellation of the Available
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Facility and the repayment of all Loans advanced under the Facility with
regard to those Lenders not wishing to continue on the date(s) which is (are) the
earlier of (i) the date falling thirty days after the last day of the described
good faith negotiation period and (ii) the last day of the then current Interest
Period(s). If no such agreement is reached between the Majority Lenders and the
Borrower the Facility shall be cancelled and all Loans advanced under the Facility
shall be repaid on the date(s) which is (are) the earlier of (i) the date falling
thirty days after the last day of the described good faith negotiation period and
(ii) the last day of the then current Interest Periods.
 Change of Control a group of persons acting in concert gemeinsam handelnde Personen Wertpapiererwerbs- und Übernahmegesetz
 8.3
    
    Voluntary cancellationThe Borrower may, if it gives the Agent not less than 5 Business Days (or such shorter
period as the Majority Lenders may agree) prior written notice, cancel the whole or any
part (being a minimum amount of EUR 20,000,000) of the Available Facility. Any
cancellation under this Clause shall reduce the Commitments of the Lenders rateably.8.4
    
    Voluntary prepayment of LoansThe Borrower may, if it gives the Agent not less than 5 Business Days (or such shorter
period as the Majority Lenders may agree) prior written notice, prepay the whole or any
part of a Loan (but, if in part, being an amount that reduces the Base Currency Amount of
the Loan by a minimum amount of EUR 20,000,000).8.5
    
    Right of replacement or repayment and cancellation in relation to a single Lender
 (a)
    
    If:
 (i)
    
    any sum payable to any Lender by the Borrower is required to be increased
under paragraph (c) of Clause 13.2 (Tax gross-up);(ii)
    
    any Lender claims indemnification from the Borrower under Clause 13.3 (Tax
indemnity) or Clause 14.1 (Increased costs); or(iii)
    
    any Lender notifies the Agent of its Additional Cost Rate under paragraph 3
of Schedule 4 (Mandatory Cost formulae),
  25




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(b)
    
    On receipt of a notice of cancellation referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.(c)
    
    On the last day of each Interest Period which ends after the Borrower has given
notice of cancellation under paragraph (a) above (or, if earlier, the date specified by
the Borrower in that notice), the Borrower shall repay that Lenders participation in
that Loan.(d)
    
    The Borrower may, in the circumstances set out in paragraph (a) above, on 5 Business
Days prior notice to the Agent and that Lender, replace that Lender by requiring that
Lender to (and, to the extent such assignment and transfer by assumption of contract
(Vertragsübernahme) is permitted by applicable laws and regulations, that Lender shall)
assign and transfer by assumption of contract (Vertragsübernahme) pursuant to Clause 22
(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
selected by the Borrower which confirms its willingness to assume and does assume all the
obligations of the transferring Lender in accordance with Clause 22 (Changes to the
Lenders) for a purchase price in cash or other cash payment payable at the time of the
transfer equal to the outstanding principal amount of such Lenders participation in the
outstanding Loans and all accrued interest (to the extent that the Agent has not given a
notification under Clause 22.8 (Pro rata interest settlement)), Break Costs and other
amounts payable in relation thereto under the Finance Documents.(e)
    
    The replacement of a Lender pursuant to paragraph (d) above shall be subject to the
following conditions:
 (i)
    
    the Borrower shall have no right to replace the Agent;(ii)
    
    neither the Agent nor any Lender shall have any obligation to find a
replacement Lender (without prejudice to Clause 16.1 (Mitigation)); and(iii)
    
    in no event shall the Lender replaced under paragraph (d) above be required
to pay or surrender any of the fees received by such Lender pursuant to the
Finance Documents.
 26




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(f)
    
    Without prejudice to Clause 33.4 (Replacement of a Defaulting Lender):
 (i)
    
    If any Lender becomes a Defaulting Lender, the Borrower may, at any time
whilst the Lender continues to be a Defaulting Lender, give the Agent 4 Business
Days notice of cancellation of the Available Commitment of that Lender.(ii)
    
    On the notice referred to in paragraph (i) above becoming effective, the
Available Commitment of the Defaulting Lender shall immediately be reduced to
zero.(iii)
    
    The Agent shall as soon as practicable after receipt of a notice referred to
in paragraph (i) above, notify all the Lenders.
 8.6
    
    Restrictions
 (a)
    
    Any notice of cancellation or prepayment given by any Party under this Clause 8 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)
    
    Unless a contrary indication appears in this Agreement, any part of the Facility which
is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.(d)
    
    The Borrower shall not repay or prepay all or any part of the Loans or cancel all or
any part of the Commitments except at the times and in the manner expressly provided for
in this Agreement.(e)
    
    Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under
this Agreement may be subsequently reinstated.(f)
    
    If the Agent receives a notice under this Clause 8 it shall promptly forward a copy of
that notice to either the Borrower or the affected Lender, as appropriate.
 27




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SECTION 5
COSTS OF UTILISATION
 9.
    
    INTEREST9.1
    
    Calculation of interestThe 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)
    
    EURIBOR in relation to any Loan in euro, or LIBOR in relation to any Loan in any
Optional Currency; and(c)
    
    Mandatory Cost, if any.
 9.2
    
    Payment of interestOn the last day of each Interest Period the Borrower shall pay accrued interest on the Loan
to which that Interest Period relates (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).9.3
    
    Default interest
 (a)
    
    If the Borrower fails to pay any amount (other than interest) payable by it under a
Finance Document on its due date, interest shall accrue, subject to paragraph (c) below, on
the Unpaid Sum from the due date up to the date of actual payment (both before and after
judgment) at a rate which is the sum of one per cent. and the rate which would have been
payable if the Unpaid Sum had, during the period of non-payment, constituted a Loan in the
currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by
the Agent (acting reasonably).(b)
    
    Any amounts accruing under this Clause 9.3 shall be payable by the Borrower following
request by the Agent on the last day of the respective Interest Period selected by the
Agent or determined in accordance with paragraph (c) below.(c)
    
    If any Unpaid Sum 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 Unpaid Sum shall have a duration equal to the
unexpired portion of the current Interest Period relating to that Loan; and
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(ii)
    
    the rate of interest applying to the Unpaid Sum during that first Interest
Period shall be the sum of one per cent. and the rate which would have applied if
the Unpaid Sum had not become due.
 (d)
    
    This Clause 9.3 shall not limit or affect the right of any Finance Party to demand
compensation for damages exceeding the default interest payable hereunder.
 9.4
    
    Notification of rates of interestThe Agent shall promptly notify the Lenders and the Borrower of the determination of a rate
of interest under this Agreement.10.
    
    INTEREST PERIODS10.1
    
    Selection of Interest Periods
 (a)
    
    The Borrower may select an Interest Period for a Loan in the Utilisation Request for
that Loan.(b)
    
    Subject to this Clause 10, the Borrower may select an Interest Period of one, two,
three or six months or any other period agreed between the Borrower and the Agent (acting
on the instructions of all the Lenders).(c)
    
    An Interest Period for a Loan shall not extend beyond the Termination Date.(d)
    
    Each Interest Period for a Loan shall start on the Utilisation Date.(e)
    
    A Loan has one Interest Period only.
 10.2
    
    Non-Business DaysIf 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).11.
    
    CHANGES TO THE CALCULATION OF INTEREST11.1
    
    Absence of quotationsSubject to Clause 11.2 (Market disruption), if EURIBOR or, if applicable, LIBOR 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 EURIBOR or LIBOR shall
be determined on the basis of the quotations of the remaining Reference Banks.
 29




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11.2
    
    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 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 EURIBOR or, if applicable, LIBOR for the relevant
currency and Interest Period; or(ii)
    
    before close of business in Luxembourg on the Quotation Day for the relevant
Interest Period, the Agent receives notifications from a Lender or Lenders (whose
participations in a Loan exceed 45 per cent. of that Loan) that the cost to it of
obtaining matching deposits in the European interbank market would be in excess of
EURIBOR or, if applicable, LIBOR.
 11.3
    
    Alternative basis of interest or funding
 (a)
    
    If a Market Disruption Event occurs and the Agent or the Borrower so requires, the
Agent and the Borrower 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 Borrower, be binding on all Parties.
 30




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11.4
    
    Break Costs
 (a)
    
    The 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 the 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.
 12.
    
    FEES12.1
    
    Commitment fee
 (a)
    
    The Borrower shall pay to the Agent (for the account of each Lender) a fee in the Base
Currency computed at the rate of 0.44 per cent. per annum on that Lenders Available
Commitment for the Availability Period.(b)
    
    The accrued commitment fee is payable on the last day of each successive period of
three Months which ends during the Availability Period, on the last day of the Availability
Period and, if a Lenders Commitment is cancelled in full, on the cancelled amount of the
relevant Lenders Commitment at the time the cancellation is effective.(c)
    
    No commitment fee is payable to the Agent (for the account of a Lender) on the
Available Commitment of that Lender for any day on which that Lender is a Defaulting
Lender.
 12.2
    
    Utilisation fee
 (a)
    
    The Borrower shall pay to the Agent (for the account of each Lender) a fee in the Base
Currency computed on a day to day basis at a rate of:
 (i)
    
    0.25 per cent. per annum on the aggregated Base Currency Amounts of all Loans
then outstanding for each day the aggregated Base Currency Amounts of all Loans
outstanding on such day equal or exceed
331/3
per cent., but are less than
662/3 per
cent., of the Total Commitments as of the date of signing of this Agreement;(ii)
    
    0.50 per cent. per annum on the aggregated Base Currency Amounts of all Loans
then outstanding for each day the aggregated Base Currency Amounts of all Loans
outstanding on such day equal or exceed
662/3 per cent. of the Total Commitments as of
the date of signing of this Agreement.
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(b)
    
    The accrued utilisation fee is payable on the last day of each successive period of
three Months and on the Termination Date.
 12.3
    
    Arrangement and participation feesThe Borrower shall pay to the Mandated Lead Arrangers and the Original Lenders,
respectively, arrangement and participation fees in the amount and at the times agreed in a
Fee Letter.12.4
    
    Agency feeThe Borrower shall pay to the Agent (for its own account) an agency fee in the amount and
at the times agreed in a Fee Letter.
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SECTION 6
 ADDITIONAL PAYMENT OBLIGATIONS
 13.
    
    TAX GROSS UP AND INDEMNITIES13.1
    
    DefinitionsIn this Agreement: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 a Lender which is beneficially entitled to interest payable to
that Lender and is:
 (a)
    
    a company resident in Germany for German tax purposes; or(b)
    
    a company not so resident in Germany which carries on a business in Germany through a
Facility Office in Germany with which that Lenders participation in the Loan is
effectively connected; or(c)
    
    a partnership each member of which fulfils the prerequisites of (a) or (b) above; or(d)
    
    a Treaty Lender.
 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 the Borrower to a Finance
Party under Clause 13.2 (Tax gross-up) or a payment under Clause 13.3 (Tax indemnity).Treaty Lender means a Lender which:
 (a)
    
    is treated as a resident of a Treaty State for the purposes of the Treaty; and(b)
    
    is entitled under the provisions of a double taxation treaty with Germany to receive
payments of interest from the Borrower without a Tax Deduction (subject to the fulfilment
of any necessary procedural formalities); and
 33




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(c)
    
    does not carry on a business in Germany through a permanent establishment or a
permanent representative with which the Lenders participation in the Loan is effectively
connected.
 Treaty State means a jurisdiction having a double taxation agreement (a Treaty) with
Germany which makes provision for full exemption from any tax imposed by Germany on
interest payments under a Finance Document.Unless a contrary indication appears, in this Clause 13 a reference to determines or
determined means a determination made in the reasonable discretion of the person making
the determination.13.2
    
    Tax gross-up
 (a)
    
    The Borrower shall make all payments to be made by it without any Tax Deduction, unless
a Tax Deduction is required by law.(b)
    
    The Borrower shall promptly upon becoming aware that it 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 promptly notify the Agent if that Lender is not, or
ceases to be a Qualifying Lender or on becoming aware in respect of a payment payable to
that Lender that the Borrower must make a Tax Deduction (or that there is any change in the
rate or the basis of a Tax Deduction) setting out the reasons in a reasonably detailed
manner. If the Agent receives such notification from a Lender it shall notify the Borrower.(c)
    
    If a Tax Deduction is required by law, including legal interpretations in public letter
rulings of the competent tax administration, to be made by the Borrower, the amount of the
payment due from it 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. However, in no event will the Borrower be obliged to pay in excess of the
amount that would have been required in respect of payments to a Qualifying Lender.(d)
    
    The Borrower 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 relevant tax authorities
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,
 34




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or application of) any law, or any published practice or concession of any
relevant taxing authority; or(ii)
    
    the relevant Lender is a Treaty Lender and the Borrower 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 the Borrower is required to make a Tax Deduction, it 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.(f)
    
    Within thirty days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Borrower 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 the Borrower shall co-operate in completing any procedural
formalities necessary for the Borrower to obtain authorisation to make that payment without
a Tax Deduction.
 13.3
    
    Tax indemnity
 (a)
    
    The Borrower 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
is able to demonstrate it has (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:
 (1)
    
    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; or(2)
    
    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,
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if that Tax is imposed on or calculated by reference to the net or gross
income received or receivable by that Finance Party; or
 (ii)
    
    to the extent a loss, liability or cost:
 (1)
    
    is compensated for by an increased payment under Clause 13.2 (Tax
gross-up); or(2)
    
    would have been compensated for by an increased payment under Clause 13.2
(Tax gross-up) but was not so compensated solely because one of the
exclusions in paragraph (d) of Clause 13.2 (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,
setting out such event in reasonable detail, following which the Agent shall notify the
Borrower.(d)
    
    A Protected Party shall, on receiving a payment from the Borrower under this Clause
13.3, notify the Agent.
 13.4
    
    Tax CreditIf the Borrower 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 obtained, utilised and retained that Tax Credit,
 the Finance Party shall pay an amount to the Borrower 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 Borrower.13.5
    
    Lender Status ConfirmationEach Lender which becomes a Party to this Agreement or acquires any rights hereunder in
each case after the date of this Agreement shall indicate, in the Transfer Certificate,
Assignment Certificate or Increase Confirmation which it executes on becoming a Party or
acquiring any rights hereunder, and for the benefit of the Agent and without liability to
the Borrower, which of the following categories it falls in:
 (a)
    
    not a Qualifying Lender;(b)
    
    a Qualifying Lender (other than a Treaty Lender); or
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(c)
    
    a Treaty Lender.
 If a New Lender fails to indicate its status in accordance with this Clause 13.5 then such
New Lender shall be treated for the purposes of this Agreement (including by the Borrower)
as if it is not a Qualifying Lender until such time as it notifies the Agent which category
applies (and the Agent, upon receipt of such notification, shall inform the Borrower). For
the avoidance of doubt, a Transfer Certificate, Assignment Certificate or Increase
Confirmation shall not be invalidated by any failure of a Lender to comply with this Clause
13.5.13.6
    
    Stamp taxesThe Borrower 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.13.7
    
    Value added tax
 (a)
    
    All considerations expressed to be payable under a Finance Document by any Party to a
Finance Party shall be deemed to be exclusive of any VAT. If VAT is chargeable on any
service (sonstige Leistung) made by any Finance Party to any Party under or in connection
with 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 owed by
such Finance Party. The Finance Party shall promptly provide an appropriate invoice in
accordance with sections 14, 14a German VAT Act (Umsatzsteuergesetz) or with corresponding
domestic rules of any other jurisdiction of that Finance Party. To the extent that VAT
arises solely because of an exercise of an option by the Finance Party to make the service
subject to VAT, sentence 2 of this paragraph shall only apply if the Borrower has given its
consent to the exercise of the option, which consent shall not be unreasonably withheld.(b)
    
    If VAT is chargeable on any service made by any Finance Party (the Service Provider)
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 service to the Service Provider (rather than being required
to reimburse the Recipient in respect of that consideration), such Party shall also pay to
the Service Provider (in addition to and at the same time as paying such amount) an amount
equal to the amount of VAT owed by the Service Provider, paragraph (a) sentence 3 shall
apply mutatis mutandis. The Recipient will promptly pay to the Relevant Party an amount
equal to any credit or repayment from the relevant tax
 37




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authority which it reasonably determines relates to the VAT chargeable on that
service.(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 and owed 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, paragraph (a) sentence 3
shall apply mutatis mutandis.
 14.
    
    INCREASED COSTS14.1
    
    Increased costs
 (a)
    
    Subject to Clause 14.3 (Exceptions) the Borrower 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.
 14.2
    
    Increased cost claims
 (a)
    
    A Finance Party intending to make a claim pursuant to Clause 14.1 (Increased costs)
shall notify the Agent of the event giving rise to the claim, following which the Agent
shall promptly notify the Borrower.(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
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and setting out the calculation of such Increased Costs in reasonable detail.
 14.3
    
    Exceptions
 (a)
    
    Clause 14.1 (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 the Borrower;(ii)
    
    compensated for by Clause 13.3 (Tax indemnity) (or would have been compensated
for under Clause 13.3 (Tax indemnity) but was not so compensated solely because any
of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied);(iii)
    
    compensated for by the payment of the Mandatory Cost;(iv)
    
    attributable to the wilful breach by the relevant Finance Party or its
Affiliates of any law or regulation; or(v)
    
    attributable to the implementation or application of or compliance with the
International Convergence of Capital Measurement and Capital Standards, a Revised
Framework published by the Basel Committee on Banking Supervision in June 2004 in
the form existing on the date of this Agreement (Basel II) or any other law or
regulation which implements Basel II (whether such implementation, application or
compliance is by a government, regulator, Finance Party or any of its Affiliates).
 (b)
    
    In this Clause 14.3, a reference to a Tax Deduction has the same meaning given to the
term in Clause 13.1 (Definitions).
 15.
    
    OTHER INDEMNITIES15.1
    
    Currency indemnity
 (a)
    
    If any sum due from the Borrower 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 the Borrower;(ii)
    
    obtaining or enforcing an order, judgment or award in relation to any
litigation or arbitration proceedings,
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the Borrower 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)
    
    The Borrower 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.
 15.2
    
    Other indemnitiesThe Borrower shall, 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 the Borrower 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 26 (Sharing among the Finance Parties);(c)
    
    funding, or making arrangements to fund, its participation in a Loan requested by the
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 Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment
given by the Borrower.
 15.3
    
    Indemnity to the AgentThe Borrower shall promptly indemnify the Agent against any cost, loss or liability
incurred by the Agent (acting reasonably) as a result of:
 (a)
    
    investigating any event which it reasonably believes is a Default; or(b)
    
    acting or relying on any notice, request or instruction which it reasonably believes to
be genuine, correct and appropriately authorised.
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16.
    
    MITIGATION BY THE LENDERS16.1
    
    Mitigation
 (a)
    
    Each Finance Party shall, in consultation with the Borrower, 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 8.1 (Illegality),
Clause 13 (Tax gross-up and indemnities), Clause 14.1 (Increased costs) or paragraph 3 of
Schedule 4 (Mandatory Cost formulae) 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 rights and obligations of the
Borrower under the Finance Documents.
 16.2
    
    Limitation of liability
 (a)
    
    The Borrower 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 16.1
(Mitigation).(b)
    
    A Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if, in
the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
 17.
    
    COSTS AND EXPENSES17.1
    
    Transaction expensesThe Borrower shall promptly upon presentation of reasonably detailed statements of account
pay the Agent and the Mandated Lead Arrangers 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; and(b)
    
    any other Finance Documents executed after the date of this Agreement.
 17.2
    
    Amendment costsIf the Borrower requests an amendment, waiver or consent, the Borrower shall promptly upon
presentation of reasonably detailed statements of account reimburse the Agent for the
amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in
responding to, evaluating, negotiating or complying with that request.
 41




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17.3
    
    Enforcement costsThe Borrower 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.
 42




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SECTION 7
 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
 18.
    
    REPRESENTATIONSThe Borrower makes the representations and warranties set out in this Clause 18 to each
Finance Party on the date of this Agreement.18.1
    
    Status
 (a)
    
    The Borrower is a stock corporation (Aktiengesellschaft), duly incorporated and validly
existing under the laws of Germany.(b)
    
    The Borrower has the power to own its assets and carry on its business as it is being
conducted.
 18.2
    
    Binding obligationsThe obligations expressed to be assumed by it in each Finance Document are, subject to the
Reservations, legal, valid, binding and enforceable obligations.18.3
    
    Non-conflict with other obligationsThe 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 Material Subsidiaries constitutional documents, provided that a
Utilisation under this Agreement may require an Approval; or(c)
    
    any agreement or instrument binding upon it or any of its Material Subsidiaries to an
extent or in a manner which is reasonably likely to have a Material Adverse Effect.
 18.4
    
    Power and authorityIt 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, provided that a
Utilisation under this Agreement may require an Approval.18.5
    
    Validity and admissibility in evidenceAll 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; and
 43




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(b)
    
    to make the Finance Documents to which it is a party admissible in evidence in its
jurisdiction of incorporation,
 have been obtained or effected and are in full force and effect, provided that a
Utilisation under this Agreement may require an Approval.18.6
    
    Governing law and enforcementSubject to the Reservations:
 (a)
    
    the choice of German law as the governing law of the Finance Documents will be
recognised and enforced in its jurisdiction of incorporation; and(b)
    
    any judgment obtained in the Federal Republic of Germany in relation to a Finance
Document will be recognised and enforced in its jurisdiction of incorporation.
 18.7
    
    Deduction of TaxIt is not required to make any deduction for or on account of Tax from any payment it may
make under any Finance Document.18.8
    
    No filing or stamp taxesUnder 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.18.9
    
    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 which is
reasonably likely to have a Material Adverse Effect.
 18.10
    
    No misleading information
 (a)
    
    Any factual information provided by the Borrower for the purposes of the Information
Package 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 Package have been prepared on
the basis of recent historical information and on the basis of reasonable assumptions.
 44




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(c)
    
    Nothing has occurred or been omitted from the Information Package and no information
has been given or withheld that results in the information contained in the Information
Package being untrue or misleading in any material respect.
 18.11
    
    Financial statements
 (a)
    
    Its Original Financial Statements were prepared in accordance with GAAP consistently
applied.(b)
    
    Its Original Financial Statements fairly represent in accordance with applicable GAAP
its financial condition and operations (consolidated in the case of consolidated financial
statements) during the relevant financial year.
 18.12
    
    Pari passu rankingIts payment obligations under the Finance Documents rank at least pari passuwith the
claims of all its other unsecured and unsubordinated creditors save those whose claims are
mandatorily preferred by any bankruptcy, insolvency, liquidation or other similar laws of
general application.18.13
    
    No proceedings pending or threatenedNo litigation, arbitration or administrative proceedings of or before any court, arbitral
body or agency which are reasonably likely to be adversely determined and, if so
determined, are reasonably likely 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.18.14
    
    No material adverse changeNo material adverse change in the assets, business or financial condition of the Borrower
or the Group taken as a whole, which could adversely affect the ability of the Borrower to
perform its payment obligations under the Finance Documents has occurred since the date to
which the Original Financial Statements relate.18.15
    
    RepetitionThe Repeating Representations are made by the Borrower on the date of each Utilisation
Request in the related Utilisation Request and are deemed to be made by the Borrower on the
first day of each Interest Period (in each case by reference to the facts and circumstances
then existing) provided that the Repeating Representations set out in Clauses 18.3 (b)
(Non-conflict with other obligations), 18.4 (Power and authority) and 18.5 (Validity and
admissibility in evidence) are in each case made in the form set out in the Utilisation
Request (provided that where they are deemed to be made by the Borrower on the first day of
an Interest Period in the form set out in the Utilisation Request they are
 45




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deemed to be made by reference to the facts and circumstances existing on the first day of
such Interest Period).19.
    
    INFORMATION UNDERTAKINGSThe undertakings in this Clause 19 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.19.1
    
    Financial statements and Material Subsidiaries listThe Borrower 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 120 days after the end of
each of its financial years:
 (i)
    
    its audited unconsolidated annual financial statements for that financial year;
and(ii)
    
    the audited consolidated annual financial statements of the Group for that
financial year;
 (b)
    
    as soon as the same become available, but in any event within 90 days after the end of
the relevant financial quarter of each of its financial years and only to the extent
produced, its unaudited interim reports published pursuant to section 66 of the Exchange
Rules (Börsenordnung) for the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse) for
the first, the second and the third quarter of each of its financial years; and(c)
    
    together with each set of audited consolidated annual financial statements of the
Group, a list of Material Subsidiaries evidencing compliance with the Minimum Coverage
Test.
 19.2
    
    Requirements as to financial statements
 (a)
    
    Each set of annual financial statements delivered by the Borrower pursuant to Clause
19.1 (Financial statements and Material Subsidiaries list) shall be certified by two
directors of the Borrower as in accordance with applicable GAAP fairly representing its
financial condition as at the date as at which those financial statements were drawn up.(b)
    
    Each set of annual financial statements delivered by the Borrower pursuant to paragraph
(a)(ii) of Clause 19.1 (Financial statements and Material Subsidiaries list) shall contain
or be accompanied by a Subsidiaries list substantially equivalent to the Subsidiaries
list set forth in the notes to the Original Financial Statements under the heading
Subsidiaries, Equity Method Investments, and Other Investments.
 46




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(c)
    
    The Borrower shall subject to Clause 19.2(d) and (e) (Requirements as to financial
statements) below procure that each set of financial statements of the Borrower delivered
pursuant to Clause 19.1 (Financial statements and Material Subsidiaries list) is prepared
using GAAP and accounting practices and financial reference periods consistent with those
applied in the preparation of the Original Financial Statements for the Borrower, unless in
relation to any set of financial statements, it notifies the Agent that there has been a
material change in GAAP, the accounting practices or reference periods in each case
referred to in the notes, if any, to such financial statements provided that the Borrower
is not obliged to make such notification referred to in this paragraph prior to supplying
the financial statements to which such notification relates in accordance with Clause 19.1
(Financial statements and Material Subsidiaries list). Upon such notification the Agent
acting reasonably shall be entitled to request the Borrower to deliver to the Agent:
 (i)
    
    a description of any change necessary for those financial statements to reflect
the GAAP, accounting practices and reference periods upon which the Borrowers
Original Financial Statements were prepared; and(ii)
    
    sufficient information, in form and substance as may be reasonably required by
the Agent to enable the Lenders to make an accurate comparison between the financial
position indicated in those financial statements and the Borrowers Original
Financial Statement provided that nothing herein shall be interpreted so as to
entitle the Agent to request any information from the Borrower the generation of
which is either unduly onerous or impracticable for the Borrower.
 (d)
    
    The Borrower may change the accounting principles applied to:
 (i)
    
    the consolidated financial statements of the Group from US
GAAP to IFRS or any other accounting principles which the Borrower may legally
be required to adhere to; and(ii)
    
    the unconsolidated financial statements of the Borrower from German GAAP to
IFRS, if such unconsolidated financial statements are permitted by applicable law to
be prepared on such basis instead of German GAAP.
 The Borrower shall notify the Agent of such change of the accounting principles when
for the first time supplying the financial statements prepared on such changed basis
in accordance with Clause 19.1
 47




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(Financial statements and Material Subsidiaries list). In the event of any such
change to the basis on which the relevant financial statements are prepared the
Borrower shall upon request of the Agent promptly supply the Agent with sufficient
information in form and substance as may be reasonably required by the Agent,
prepared on the same basis as the Original Financial Statements to enable the Lenders
to make a proper comparison between the financial position shown by any set of
financial statements prepared on such changed basis and that under the Original
Financial Statements, provided that nothing herein shall be interpreted so as to
entitle the Agent to request any information from the Borrower the generation of
which is either unduly onerous or impracticable for the Borrower and further provided
that the Agent may only request such information with regard to the set of financial
statements supplied pursuant to Clause 19.1(a) or 19.1(b) (Financial statements and
Material Subsidiaries list) as the case may be to which the notification referred to
above relates and in addition:
 (i)
    
    if such notification is in relation to a set of financial statements supplied
pursuant to Clause 19.1(a)(ii) (Financial statements and Material Subsidiaries list)
the next set of financial statements supplied pursuant to Clause 19.1(b) (Financial
statements and Material Subsidiaries list); or(ii)
    
    if such notification is in relation to a set of financial statements supplied
pursuant to Clause 19.1(b) (Financial statements and Material Subsidiaries list) the
next set of financial statements supplied pursuant to Clause 19.1(a)(ii) (Financial
statements and Material Subsidiaries list).
 (e)
    
    Nothing herein shall be interpreted so as to limit the right of the Borrower to prepare
 (i)
    
    consolidated financial statements of the Group applying US
GAAP accounting principles and parallel consolidated financial statements of
the Group applying IFRS accounting principles or any other accounting
principles which the Borrower may legally be required to adhere to, as the
case may be; or(ii)
    
    unconsolidated financial statements of the Borrower applying German GAAP
accounting principles and parallel unconsolidated financial statements of the
Borrower applying IFRS accounting principles,
 48




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provided that the Borrower shall not be obliged to notify the Agent of such parallel
accounting. Upon the occurrence of a change as contemplated in Clause 19.2(d)
(Requirements as to financial statements) the Lenders acting through the Agent
however may not request the information referred to in Clause 19.2(d) (Requirements
as to financial statements) if and to the extent the Borrower has provided a set of
financial statements prepared on the basis of the accounting principles applied in
parallel with each set of financial statements supplied pursuant to Clause 19.1(a)
and 19.1(b) (Financial statements and Material Subsidiaries list) immediately prior
to such change.
 19.3
    
    Information: miscellaneousThe Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if the
Agent so requests):
 (a)
    
    all documents dispatched in paper form by the Borrower to its shareholders (or any
class of them) or 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 if adversely determined are reasonably likely to have a Material
Adverse Effect; and(c)
    
    promptly, such other appropriate information regarding the financial condition,
business and operations of the Group as the Agent or any Finance Party (through the Agent)
may reasonably request in accordance with generally established customary banking practice
and/or regulatory requirements. However, no information shall be requested with reference
to generally established customary banking practice if this information does not fall into
the type and scope of information required to be publicly disclosed under the current
Exchange Rules (Börsenordnung) for the Frankfurt Stock Exchange (Frankfurter
Wertpapierbörse) published by Deutsche Börse AG regarding issuers whose shares are admitted
for trading in the regulated market (Regulierter Markt) of the Frankfurt Stock Exchange and
are quoted in the related Prime Standard segment, taking into account any disclosure
exemptions agreed between the Borrower and Deutsche Börse AG.
 19.4
    
    Notification of default
 (a)
    
    The Borrower shall notify the Agent of any Default (and the steps, if any, being taken
to remedy it) promptly upon becoming aware of its occurrence.
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(b)
    
    Promptly upon a request by the Agent, the Borrower 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).
 19.5
    
    Use of Websites
 (a)
    
    The Borrower may satisfy its obligation under this Agreement to deliver any information
in relation to those Lenders (the Website Lenders) who accept this method of
communication by posting this information onto an electronic website designated by the
Borrower and the Agent (the Designated Website) if:
 (i)
    
    the Agent expressly agrees (after consultation with each of the Lenders) that it
will accept communication of the information by this method;(ii)
    
    both the Borrower and the Agent are aware of the address of and any relevant
password specifications for the Designated Website; and(iii)
    
    the information is in a format previously agreed between the Borrower and the
Agent.
 If any Lender (a Paper Form Lender) does not agree to the delivery of information
electronically then the Agent shall notify the Borrower accordingly and the Borrower
shall supply the information to the Agent (in sufficient copies for each Paper Form
Lender) in paper form. In any event the Borrower shall supply the Agent with at
least one copy in paper form of any information required to be provided by it.(b)
    
    The Agent shall supply each Website Lender with the address of and any relevant
password specifications for the Designated Website following designation of that website by
the Borrower and the Agent.(c)
    
    The Borrower shall promptly upon becoming aware of its occurrence notify the Agent if:
 (i)
    
    the Designated Website cannot be accessed due to technical failure;(ii)
    
    the password specifications for the Designated Website change;(iii)
    
    any new information which is required to be provided under this Agreement is
posted onto the Designated Website;
 50




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(iv)
    
    any existing information which has been provided under this Agreement and
posted onto the Designated Website is amended; or(v)
    
    the Borrower becomes aware that the Designated Website or any information posted
onto the Designated Website is or has been infected by any electronic virus or
similar software.
 If the Borrower notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above,
all information to be provided by the Borrower under this Agreement after the date
of that notice shall be supplied in paper form unless and until the Agent and each
Website Lender is satisfied that the circumstances giving rise to the notification
are no longer continuing.(d)
    
    Any Website Lender may request, through the Agent, one paper copy of any information
required to be provided under this Agreement which is posted onto the Designated Website.
The Borrower shall comply with any such request within ten Business Days.
 19.6
    
    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 the Borrower or the composition of the shareholders
of the Borrower after the date of this Agreement; or(iii)
    
    a proposed assignment or assignment and transfer by assumption of contract
(Vertragsübernahme) 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 assignment and
transfer by assumption of contract (Vertragsübernahme),
 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, the Borrower 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)
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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.
 20.
    
    GENERAL UNDERTAKINGSThe undertakings in this Clause 20 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.20.1
    
    AuthorisationsThe Borrower shall promptly:
 (a)
    
    obtain, comply with and do all that is necessary to maintain in full force and effect;
and(b)
    
    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 the
legality, validity, enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.20.2
    
    Compliance with lawsThe Borrower shall comply in all respects with all laws to which it may be subject, if
failure so to comply would have a Material Adverse Effect.20.3
    
    Negative pledge
 (a)
    
    The Borrower shall not (and the Borrower shall ensure that no Material Subsidiary will)
create or permit to subsist any Security over any of its assets to secure Financial
Indebtedness.
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(b)
    
    Paragraph (a) above does not apply to:
 (i)
    
    any Security listed in Schedule 6 (Existing Security) except to the extent the
principal amount secured by that Security exceeds the amount stated in that Schedule;(ii)
    
    any Security arising by operation of law (or by an agreement having the same
effect) in the ordinary course of business;(iii)
    
    any Security arising under general business conditions in the ordinary course
of business, including without limitation of any bank with whom the Borrower or a
Material Subsidiary maintains a banking relationship in the ordinary course of
business;(iv)
    
    any Security over assets acquired if the Security is not created in
contemplation of the acquisition of that asset by the Borrower or the relevant
Material Subsidiary and the principal amount secured has not been increased in
contemplation of or since such acquisition and the Security is removed or discharged
within 12 months of the date of the effective acquisition of such asset;(v)
    
    any Security over an asset of any member of the Group (other than the Borrower)
which becomes a Material Subsidiary after the date of this Agreement (whether an
existing member of the Group or any other entity which is acquired by a member of the
Group after the date of this Agreement and upon such acquisition qualifies as
Material Subsidiary) where such Security is created prior to the date on which it can
be determined that the respective member of the Group has become a Material
Subsidiary (such determination to be made as contemplated in the definition of
Material Subsidiary in Clause 1.1 (Definitions)) or where the Material Subsidiary
is an entity acquired after the date of this Agreement and upon such acquisition
qualifies as a Material Subsidiary, such Security is created prior to and not in
contemplation of such acquisition;(vi)
    
    any Security arising in connection with conditional sale and retention of title
agreements;(vii)
    
    any Security arising pursuant to or in connection with:
 (1)
    
    finance leases;(2)
    
    securities lending transactions (including without limitation repurchase
transactions);
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(3)
    
    the sale, transfer or other disposal of receivables on recourse terms;(4)
    
    cash management arrangements;(5)
    
    netting or set-off arrangements; or(6)
    
    framework / master agreements relating to derivatives transactions;
 (viii)
    
    any Security over any asset held in Clearstream or Euroclear or any other
securities depository or any clearing house in favour of any such securities
depository or clearing house;(ix)
    
    any Security granted to another member of the Group;(x)
    
    any Security created or subsisting with the prior written consent of the
Majority Lenders;(xi)
    
    any Security created or subsisting to secure any obligations incurred in order
to comply with the requirements of section 8a of the German Altersteilzeitgesetz
and/or section 7e of the German Social Security Code (Sozialgesetzbuch IV) (if and to
the extent the obligations so secured constitute Financial Indebtedness); and(xii)
    
    any Security for Financial Indebtedness the amount of which (when aggregated
with the amount of any other Financial Indebtedness which has the benefit of
Security not permitted under the preceding exceptions) does not exceed euro
250,000,000 (following conversion into euro, if necessary) at any time.
 20.4
    
    Disposals
 (a)
    
    The Borrower shall not (and the Borrower shall ensure that no Material Subsidiary 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 all or a
substantial part of their respective assets.(b)
    
    Paragraph (a) above does not apply to any sale, lease, transfer or other disposal:
 (i)
    
    made in the ordinary course of business of the disposing entity;(ii)
    
    made on arms length terms;
 54




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(iii)
    
    made in exchange for other assets comparable or superior as to type, value and
quality;(iv)
    
    made by one member of the Group to another member of the Group; or(v)
    
    required by law or any governmental authority or agency.
 20.5
    
    MergerThe Borrower shall not enter into any merger (Verschmelzung), unless the entity surviving
the merger, in case it is the Borrower, retains, or in case it is the entity the Borrower
is merged with, assumes all the obligations of the Borrower under the Finance Documents by
operation of law or otherwise and the creditworthiness of such surviving entity is equal to
or better than the creditworthiness of the Borrower immediately prior to the merger.20.6
    
    Change of businessThe Borrower 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.20.7
    
    InsuranceThe Borrower shall maintain insurances on and in relation to its business and assets with
reputable underwriters or insurance companies against those risks and to the extent as is
usual for companies carrying on the same or substantially similar business where failure to
do so could have a Material Adverse Effect.20.8
    
    Pari passurankingThe Borrower shall procure that the payment claims of the Finance Parties against the
Borrower under the Finance Documents rank at least pari passuwith the claims of all its
other unsecured and unsubordinated creditors save those whose claims are mandatorily
preferred by any bankruptcy, insolvency, liquidation or other similar laws of general
application.20.9
    
    Minimum Coverage TestAlongside Material Subsidiaries pursuant to paragraph (a) of the definition thereof in
Clause 1.1 (Definitions), the Borrower shall designate further of its Subsidiaries (the
selection of such Subsidiaries to be at the Borrowers discretion) as Material
Subsidiaries, initially in the list referred to under item (9) of Schedule 2 (Conditions
precedent) and thereafter in any list referred to in paragraph (c) of Clause 19.1
(Financial statements and Material Subsidiaries list) if and to the extent necessary to
ensure that as at the date as of which, initially, the Original Financial Statements or,
thereafter, the relevant financial statements delivered pursuant to paragraph (a) (ii) of
Clause 19.1 (Financial
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statements and Material Subsidiaries list) were drawn up, the aggregate unconsolidated
turnover of:
 (i)
    
    the Material Subsidiaries pursuant to paragraph (a) of the definition thereof in Clause
1.1 (Definitions);(ii)
    
    the Borrower; and(iii)
    
    such further Subsidiaries
 represents at least 75 per cent. of the consolidated turnover of the Group (such test, the
Minimum Coverage Test) (calculated and determined as provided in the definition of
Material Subsidiary in Clause 1.1 (Definitions)).21.
    
    EVENTS OF DEFAULTEach of the events or circumstances set out in Clause 21 is an Event of Default (save for
Clause 21.10 (Acceleration)). Without prejudice to the provisions of this Agreement,
section 490(1) of the German Civil Code (Bürgerliches Gesetzbuch) shall not apply.21.1
    
    Non-paymentThe Borrower does not pay on the due date any amount payable pursuant to a Finance Document
at the place and in the currency in which it is expressed to be payable unless:
 (a)
    
    its failure to pay is caused by administrative or technical error; and(b)
    
    payment is made within three Business Days of its due date.
 21.2
    
    Other obligations
 (a)
    
    The Borrower does not comply with any other obligation of the Finance Documents.(b)
    
    No Event of Default under paragraph (a) above will occur if the failure to comply is
capable of remedy and is remedied within 14 Business Days of the earlier of the Agent giving
notice to the Borrower or the Borrower becoming aware of the failure to comply.
 21.3
    
    MisrepresentationAny representation or statement made or deemed to be made by the Borrower in the Finance
Documents or any other document delivered by or on behalf of the Borrower 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 and, where the circumstances underlying
such misrepresentation or incorrect or misleading statement are capable of remedy, is not
remedied within
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14 Business Days of the earlier of the Agent giving notice to the Borrower or the Borrower
becoming aware of the representation or statement being incorrect or misleading.21.4
    
    Cross default
 (a)
    
    Any Financial Indebtedness of the Borrower or any Material Subsidiary is not paid when
due nor within any originally applicable grace period.(b)
    
    Any Financial Indebtedness of the Borrower or any Material Subsidiary 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)
    
    No Event of Default will occur under this Clause 21.4 if the aggregate amount of
Financial Indebtedness falling within paragraphs (a) and (b) above is less than EUR
20,000,000 (or its equivalent in any other currency or currencies).
 21.5
    
    Insolvency
 (a)
    
    The Borrower or any of its Material Subsidiaries 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 any class of its
creditors with a view to rescheduling any of its indebtedness.(b)
    
    The Borrower or any of its German Material Subsidiaries is over-indebted within the
meaning of section 19 of the German Insolvency Code (Insolvenzordnung) or unable to pay its
debt within the meaning of section 17 of the German Insolvency Code.(c)
    
    Any Material Subsidiary being a French Company:
 (i)
    
    is in a state of suspension of payments (cessation des paiements) or becomes
insolvent for the purposes of insolvency law; or(ii)
    
    in order to avoid a suspension of payments (cessation des paiements), commences
negotiations with one or more of its creditors with a view to rescheduling any of
its indebtedness.
 (d)
    
    Any Material Subsidiary being a U.S. Company:
 (i)
    
    applies for, or consents to, the appointment of, or the taking of possession by,
a receiver, custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its property;(ii)
    
    makes a general assignment for the benefit of its creditors;
 57




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(iii)
    
    commences a voluntary case under Chapter 11 of the United States of America
Code entitled Bankruptcy (or any successor thereof), as amended;(iv)
    
    files a petition with respect to itself seeking to take advantage of any other
law relating to bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement or winding up, or composition or readjustment of debts; or(v)
    
    takes any corporate action for the purpose of effecting any of the foregoing
with respect to itself.
 21.6
    
    Insolvency proceedingsAny corporate action, legal proceedings or other procedure or step is taken in relation to:
 (a)
    
    the opening of insolvency proceedings (including the taking of preliminary measures of
a German insolvency court under section 21 of the German Insolvency Code), 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 the
Borrower or a Material Subsidiary (other than a U.S. Company or a French Company) other
than a liquidation or reorganisation, in each case on a solvent basis, of a Material
Subsidiary;(b)
    
    a general composition, assignment or arrangement with any creditor of the Borrower or a
Material Subsidiary (other than a U.S. Company or a French Company);(c)
    
    the appointment of an insolvency administrator, a liquidator (other than in respect of
a solvent liquidation of a Material Subsidiary), receiver, administrator, administrative
receiver, compulsory manager or other similar officer in respect of the Borrower or a
Material Subsidiary (other than a U.S. Company or a French Company) or any of its assets;(d)
    
    any Material Subsidiary which is a French Company and:
 (i)
    
    the bankruptcy, winding-up, dissolution, liquidation or for a transfer of the
whole of the business of such French Company;(ii)
    
    the suspension of payments or a moratorium of any indebtedness of any such
French Company;
 58




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(iii)
    
    any procédure de conciliationor procédure de sauvegardein respect of any
such French Company; or(iv)
    
    the making of an administration order or the appointment of a mandataire ad
hoc, receiver, conciliator, liquidator, administrator or similar officer in respect
of any such French Company, or any of its assets; or
 (e)
    
    any Material Subsidiary which is a U.S. Company, without the application or consent of
such U.S. Company, in any court of competent jurisdiction, seeking:
 (i)
    
    its reorganization, liquidation, dissolution, arrangement or winding-up or the
composition or readjustment of its debts;(ii)
    
    the appointment of a receiver, custodian, trustee, examiner, liquidator or the
like of the U.S. Company or of all or any substantial part of its property; or(iii)
    
    similar relief in respect of the U.S. Company under any law relating to the
bankruptcy insolvency, reorganization, winding-up or composition or adjustment of
debts,
 and any such proceeding or case referred to in paragraphs (i) to (iii) above
continues undismissed, or an order, judgment or decree approving or ordering any of
the foregoing is entered and continues unstayed and in effect, for a period of 60 or
more days, or an order for relief against the U.S. Company shall be entered in an
involuntary case under 11 U.S.C. §101 et seq. of the United States of America Code
entitled Bankruptcy (or any successor thereto) as amended,
 or any analogous procedure or step is taken in any jurisdiction.21.7
    
    Cessation of BusinessThe Borrower suspends or ceases to carry on (or threatens to suspend or cease to carry on)
all or a material part of its business.21.8
    
    UnlawfulnessIt is or becomes unlawful for the Borrower to perform any of its obligations under the
Finance Documents.21.9
    
    Invalidity/RepudiationAny Finance Document becomes invalid or ineffective or the Borrower repudiates a Finance
Document or evidences an intention to repudiate a Finance Document.
 59




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21.10
    
    AccelerationOn 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 Borrower:
 (a)
    
    cancel the Total Commitments whereupon they shall immediately be cancelled;(b)
    
    declare that all or part of the Loans, 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; and/or(c)
    
    declare that all or part of the Loans be payable on demand, whereupon they shall
immediately become payable on demand by the Agent on the instructions of the Majority
Lenders provided that such Loans (or part thereof) shall cease to be payable on demand if
no Event of Default is continuing whereupon such Loans shall continue to be outstanding
pursuant to the terms and conditions of this Agreement.
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SECTION 8
CHANGES TO PARTIES
 22.
    
    CHANGES TO THE LENDERS22.1
    
    Assignments and transfers by the LendersSubject to this Clause 22, a Lender (the Existing Lender) may:
 (a)
    
    assign any of its rights; or(b)
    
    assign and transfer by assumption of contract (Vertragsübernahme) any of its rights
and obligations,
 to:
 (i)
    
    another bank or financial institution;(ii)
    
    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;
or(iii)
    
    any other assignee or transferee in connection with the implementation of any
customary hedging and/or de-risking instrument,
 (the New Lender).
 22.2
    
    Conditions of assignment or assignment and transfer by assumption of contract
(Vertragsübernahme)
 (a)
    
    The prior written consent of the Borrower is required for an assignment or an
assignment and transfer by assumption of contract (Vertragsübernahme) by an Existing
Lender, unless:
 (i)
    
    the assignment or assignment and transfer by assumption of contract
(Vertragsübernahme) is to another Lender or an Affiliate of a Lender; or(ii)
    
    an Event of Default has occurred and is continuing.
 (b)
    
    In case the assignment or assignment and transfer by assumption of contract
(Vertragsübernahme) is to another bank or financial institution, the consent of the
Borrower required pursuant to paragraph (a) above must not be unreasonably withheld or
delayed. In each case, the Borrower will be deemed to have given its consent ten Business
Days after the Existing Lender has requested it unless consent is expressly refused by the
Borrower within that time.
 61




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(c)
    
    The consent of the Borrower to an assignment or assignment and transfer by assumption
of contract (Vertragsübernahme) must not be withheld solely because the assignment or
assignment and transfer by assumption of contract (Vertragsübernahme) may result in an
increase to the Mandatory Cost.(d)
    
    An assignment will be effective on acceptance by the Agent of an otherwise duly
completed Assignment Certificate delivered to it by the Existing Lender and the New
Lender. The Agent shall, subject to the next sentence, as soon as reasonably practicable
after receipt by it of a duly completed Assignment Certificate appearing on its face to
comply with the terms of this Agreement and delivered in accordance with the terms of
this Agreement, accept that Assignment Certificate. The Agent shall only be obliged to
accept an Assignment 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
assignment to such New Lender.(e)
    
    An assignment and transfer by assumption of contract (Vertragsübernahme) will only be
effective if the procedure set out in Clause 22.5 (Procedure for assignment and transfer
by assumption of contract (Vertragsübernahme)) is complied with.(f)
    
    If:
 (i)
    
    a Lender assigns or assigns and transfers by assumption of contract
(Vertragsübernahme) 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, assignment
and transfer by assumption of contract (Vertragsübernahme) or change occurs, the
Borrower would be obliged to make a payment to the New Lender or Lender acting
through its new Facility Office under Clause 13 (Tax gross-up and indemnities) or
Clause 14 (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, assignment and transfer by assumption of contract
(Vertragsübernahme) or change had not occurred.
 (g)
    
    Each New Lender, by executing the relevant Transfer Certificate or Assignment
Certificate confirms, for the avoidance of doubt, that the
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Agent has authority to execute on its behalf any amendment or waiver that has been
approved by or on behalf of the requisite Lender or Lenders in accordance with
this Agreement on or prior to the date on which the assignment or assignment and
transfer by assumption of contract (Vertragsübernahme) becomes effective in
accordance with this Agreement and that it is bound by that decision to the same
extent as the Existing Lender would have been had it remained a Lender.
 22.3
    
    Fees
 (a)
    
    The New Lender shall, on the date upon which an assignment or assignment and transfer
by assumption of contract (Vertragsübernahme) takes effect, pay to the Agent (for its own
account) a fee of EUR 3,000.(b)
    
    The Lender shall, on the date upon which a change of Facility Office takes effect, pay
to the Agent (for its own account) a fee of EUR 3,000.
 22.4
    
    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 the Borrower or any other member of the Group;(iii)
    
    the performance and observance by the Borrower 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 the Borrower and its related
entities in connection with its participation in this Agreement and has not relied
exclusively on
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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 the Borrower 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-assignment or a re-assignment and re-transfer by assumption of
contract (Vertragsübernahme) from a New Lender of any of the rights and
obligations assigned or assigned and transferred by assumption of contract
(Vertragsübernahme) under this Clause 22; or(ii)
    
    support any losses directly or indirectly incurred by the New Lender by
reason of the non-performance by the Borrower of its obligations under the Finance
Documents or otherwise.
 22.5
    
    Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)
 (a)
    
    Subject to the conditions set out in Clause 22.2 (Conditions of assignment or
assignment and transfer by assumption of contract (Vertragsübernahme)) an assignment and
transfer by assumption of contract (Vertragsübernahme) is effected in accordance with
paragraph (c) below when the Agent accepts 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, accept that
Transfer Certificate.(b)
    
    The Agent shall only be obliged to accept 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)
    
    Subject to Clause 22.8 (Pro rata interest settlement), on the Transfer Date:
 (i)
    
    to the extent that in the Transfer Certificate the Existing Lender seeks to
assign and transfer by assumption of contract
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(Vertragsübernahme) its rights and obligations under the Finance
Documents each of the Borrower 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 Borrower 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 the Borrower and the New Lender have
assumed and/or acquired the same in place of the Borrower and the Existing Lender;(iii)
    
    the Agent, the Mandated Lead Arrangers, the New Lender and other 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
assignment and transfer by assumption of contract (Vertragsübernahme) and to that
extent the Agent, the Mandated Lead Arrangers 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.
 22.6
    
    Copy of Assignment Certificate, Transfer Certificate or Increase Confirmation to BorrowerThe Agent shall, as soon as reasonably practicable after it has accepted an Assignment
Certificate, a Transfer Certificate or an Increase Confirmation, send to the Borrower a
copy of that Assignment Certificate, Transfer Certificate or Increase Confirmation.22.7
    
    Security over Lenders rightsIn addition to the other rights provided to Lenders under this Clause 22, each Lender may
without consulting with or obtaining consent from the Borrower, at any time assign,
charge, pledge 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 to the European Central Bank, any other supranational bank or any other
federal reserve or central bank of any member of the Organisation for Economic
Co-operation and Development (OECD) except that no such assignment, charge, pledge or
Security shall:
 65




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(a)
    
    release a Lender from any of its obligations under the Finance Documents or substitute
the beneficiary of the relevant assignment, charge, pledge or Security for the Lender as a
party to any of the Finance Documents; or(b)
    
    require any payments to be made by the Borrower other than or in excess of, 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.
 22.8
    
    Pro rata interest settlementIf the Agent has notified the Lenders that it is able to distribute interest payments on a
pro rata basis to Existing Lenders and New Lenders then (in respect of any assignment
pursuant to Clause 22.2(d) (Conditions of assignment or assignment and transfer by
assumption of contract (Vertragsübernahme)) or assignment and transfer by assumption of
contract (Vertragsübernahme) pursuant to Clause 22.5 (Procedure for assignment and
transfer by assumption of contract (Vertragsübernahme)) the Assignment Date or Transfer
Date, respectively, of which, in each case, is after the date of such notification and is
not on the last day of an Interest Period):
 (a)
    
    any interest or fees in respect of the relevant participation which are expressed to
accrue by reference to the lapse of time shall continue to accrue in favour of the
Existing Lender up to but excluding the Assignment Date or Transfer Date, respectively,
(Accrued Amounts) and shall become due and payable to the Existing Lender (without
further interest accruing on them) on the last day of the current Interest Period (or, if
the Interest Period is longer than six Months, on the next of the dates which falls at six
monthly intervals after the first day of that Interest Period); and(b)
    
    the rights assigned or assigned and transferred by assumption of contract
(Vertragsübernahme) by the Existing Lender will not include the right to the Accrued
Amounts, so that, for the avoidance of doubt:
 (i)
    
    when the Accrued Amounts become payable, those Accrued Amounts will be payable
to the Existing Lender; and(ii)
    
    the amount payable to the New Lender on that date will be the amount which
would, but for the application of this Clause 22.8, have been payable to it on
that date, but after deduction of the Accrued Amounts.
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23.
    
    CHANGES TO THE BORROWERThe Borrower may not assign any of its rights or transfer any of its rights or obligations
under the Finance Documents.
 67




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SECTION 9
THE FINANCE PARTIES
 24.
    
    ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS24.1
    
    Appointment of the Agent
 (a)
    
    Each other Finance Party appoints the Agent to act as its agent and attorney
(Stellvertreter) under and in connection with the Finance Documents.(b)
    
    Each other Finance Party authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in connection with
the Finance Documents together with any other incidental rights, powers, authorities and
discretions.(c)
    
    Each other Finance Party hereby relieves the Agent from the restrictions pursuant to
section 181 Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it
pursuant to any other applicable law, in each case to the extent legally possible to such
Finance Party. A Finance Party which is barred by its constitutional documents or by-laws
from granting such exemption shall notify the Agent accordingly.
 24.2
    
    Duties of the Agent
 (a)
    
    Subject to paragraph (b) below, 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)
    
    Without prejudice to Clause 22.6 (Copy of Assignment Certificate, Transfer Certificate
or Increase Confirmation to Borrower), paragraph (a) above shall not apply to any Transfer
Certificate, Assignment Certificate or Increase Confirmation.(c)
    
    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.(d)
    
    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 other Finance Parties.(e)
    
    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 Mandated Lead Arrangers)
under this Agreement it shall promptly notify the other Finance Parties.
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(f)
    
    The Agents duties under the Finance Documents are solely mechanical and
administrative in nature.
 24.3
    
    Role of the Mandated Lead ArrangersExcept as specifically provided in the Finance Documents, the Mandated Lead Arrangers have
no obligations of any kind to any other Party under or in connection with any Finance
Document.24.4
    
    No fiduciary duties
 (a)
    
    Nothing in this Agreement constitutes the Agent or any Mandated Lead Arranger as a
trustee (Treuhänder) of any other person. Neither the Agent nor any Mandated Lead Arranger
has any financial or commercial duty of care (Vermögensfürsorgepflicht) for any person.(b)
    
    Neither the Agent nor any Mandated Lead 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.
 24.5
    
    Business with the GroupThe Agent and the Mandated Lead Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member of the Group.24.6
    
    Rights and discretions of the Agent
 (a)
    
    The 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 may assume (unless it has received notice to the contrary in its capacity as
agent for the Lenders) that:
 (i)
    
    no Default has occurred (unless it has actual knowledge of a Default arising
under Clause 21.1 (Non-payment));(ii)
    
    any right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised.
 (c)
    
    The Agent may engage, pay for and rely on the advice or services of any lawyers,
accountants, surveyors or other experts.
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(d)
    
    The 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)
    
    Without prejudice to the generality of paragraph (e) above, the Agent may disclose the
identity of a Defaulting Lender to the other Finance Parties and the Borrower and shall
disclose the same upon the written request of the Borrower, the Majority Lenders or the
Defaulting Lender.(g)
    
    Notwithstanding any other provision of any Finance Document to the contrary, neither
the Agent nor the Mandated Lead Arrangers are 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.
 24.7
    
    Majority Lenders instructions
 (a)
    
    Unless a contrary indication appears in a Finance Document, the Agent shall (i)
exercise any right, power, authority or discretion vested in it as Agent 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) and (ii) not be liable for 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)
    
    The 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) the Agent may act (or refrain from taking action) as it considers to be in the
best interest of the Lenders.(e)
    
    The Agent is not 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.
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24.8
    
    Responsibility for documentationNeither the Agent nor any of the Mandated Lead Arrangers:
 (a)
    
    is responsible for the adequacy, accuracy and/or completeness of any information
(whether oral or written) supplied by the Agent, the Mandated Lead Arrangers, the Borrower
or any other person given in or in connection with any Finance Document or the Information
Package;(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; or(c)
    
    is responsible for any determination as to whether any information provided or to be
provided to any Finance Party is non-public information the use of which may be regulated
or prohibited by applicable law or regulation relating to insider dealing or otherwise.
 24.9
    
    Exclusion of liability
 (a)
    
    Without limiting paragraph (b) below, the Agent 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 Agent) may take any proceedings against any officer, employee
or agent of the Agent in respect of any claim it might have against the 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 may rely on this
Clause pursuant to section 328 para 1 Civil Code (Bürgerliches Gesetzbuch) (echter
berechtigender Vertrag zugunsten Dritter).(c)
    
    The Agent will not 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 the Agent if
the Agent 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 the Agent for that purpose.(d)
    
    Nothing in this Agreement shall oblige the Agent or any Mandated Lead 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 Mandated Lead Arrangers that it
is solely responsible for any such checks it is required to carry out and that it may
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not rely on any statement in relation to such checks made by the Agent or the
Mandated Lead Arrangers.
 24.10
    
    Lenders indemnity to the AgentEach 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, within three Business Days of demand,
against any cost, loss or liability incurred by the Agent (otherwise than by reason of the
Agents gross negligence or wilful misconduct) in acting as Agent under the Finance
Documents (unless the Agent has been reimbursed by the Borrower pursuant to a Finance
Document).24.11
    
    Resignation of the Agent
 (a)
    
    The Agent may resign and appoint one of its Affiliates acting through an office in
Frankfurt, London or Luxembourg as successor by giving notice to the other Finance Parties
and the Borrower.(b)
    
    Alternatively the Agent may resign by giving notice to the other Finance Parties and
the Borrower, in which case the Majority Lenders (after consultation with the Borrower)
may appoint a successor Agent.(c)
    
    If the Majority Lenders have not appointed a successor Agent in accordance with
paragraph (b) above within 30 days after notice of resignation was given, the Agent (after
consultation with the Borrower) may appoint a successor Agent not rated lower than A by
Standard and Poors Financial Services LLC.(d)
    
    The retiring Agent shall, at its own cost, make available to the successor Agent such
documents and records and provide such assistance as the successor Agent may reasonably
request for the purposes of performing its functions as Agent under the Finance Documents.(e)
    
    The Agents resignation notice shall only take effect upon the appointment of a
successor.(f)
    
    Upon the appointment of a successor, the retiring Agent shall be discharged from any
further obligation in respect of the Finance Documents but shall remain entitled to the
benefit of this Clause 24. 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.(g)
    
    After consultation with the Borrower, the Majority Lenders may, by notice to the
Agent, require it to resign in accordance with paragraph (b)
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above.
    
    In this event, the Agent shall resign in accordance with paragraph (b)
above.
 24.12
    
    Confidentiality
 (a)
    
    In acting as agent for the Finance Parties, the Agent shall be regarded as acting
through its agency division which 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, it may be
treated as confidential to that division or department and the Agent shall not be deemed
to have notice of it.
 24.13
    
    Relationship with the Lenders
 (a)
    
    Subject to Clause 22.8 (Pro rata interest settlement), the Agent may treat the person
shown in its records as Lender at the opening of business (in the place of the Agents
principal office as notified to the Finance Parties from time to time) as the Lender
acting through its Facility Office:
 (i)
    
    entitled to or liable for any payment due under any Finance Document on that
day; and(ii)
    
    entitled to receive and act upon any notice, request, document or
communication or make any decision or determination under any Finance Document
made or delivered on that day,
 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).(c)
    
    Any Lender may by notice to the Agent appoint a person to receive on its behalf all
notices, communications, information and documents to be made or despatched to that Lender
under the Finance Documents. Such notice shall contain the address, fax number and (where
communication by electronic mail or other electronic means is permitted under Clause 29.5
(Electronic communication)) electronic mail address and/or any other information required
to enable the sending and receipt of information by that means (and, in each case, the
department or officer, if any, for whose attention communication is to be made) and be
treated as a notification of a substitute address, fax number, electronic mail address,
department and officer by that Lender for the purposes of Clause 29.2 (Addresses) and
paragraph (a)(iii) of Clause 29.5 (Electronic
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communication) and the Agent shall be entitled to treat such person as the person
entitled to receive all such notices, communications, information and documents as
though that person were that Lender.
 24.14
    
    Credit appraisal by the LendersWithout affecting the responsibility of the Borrower for information supplied by it or on
its behalf in connection with any Finance Document, each Lender confirms to the Agent and
the Mandated Lead Arrangers 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, 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,
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 Package and any other
information provided by the 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, arrangement or document entered into, made or executed in anticipation
of, under or in connection with any Finance Document.
 24.15
    
    Reference BanksIf 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 Borrower)
appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.24.16
    
    Deduction from amounts payable by the AgentIf any Party owes an amount to the Agent under the Finance Documents the Agent may, after
giving notice to that Party, deduct an amount not exceeding that amount from any payment
to that Party which the Agent 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
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Documents that Party shall be regarded as having received any amount so deducted.25.
    
    CONDUCT OF BUSINESS BY THE FINANCE PARTIESUnless expressly provided for otherwise in this Agreement 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.
 26.
    
    SHARING AMONG THE FINANCE PARTIES26.1
    
    Payments to Finance PartiesIf a Finance Party (a Recovering Finance Party) receives or recovers any amount from the
Borrower other than in accordance with Clause 27 (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 27 (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 27.5 (Partial payments).
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26.2
    
    Redistribution of paymentsThe Agent shall treat the Sharing Payment as if it had been paid by the Borrower and
distribute it between the Finance Parties (other than the Recovering Finance Party) in
accordance with Clause 27.5 (Partial payments).26.3
    
    Recovering Finance Partys rights
 (a)
    
    On a distribution by the Agent under Clause 26.2 (Redistribution of payments), the
Recovering Finance Party shall be entitled to receive by way of assignment the rights of
the Finance Parties to the extent they 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 Borrower shall be liable to the Recovering Finance
Party for a debt equal to the Sharing Payment which is immediately due and payable after
notification by the Agent to the Borrower that and to whom such amount is payable with
reference to this Clause 26.3 (b).
 26.4
    
    Reversal of redistributionIf 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 26.2 (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 assignment in respect of any reimbursement
shall be cancelled and the Borrower will be liable to the reimbursing Finance Party for
the amount so reimbursed and the Recovering Finance Party shall re-assign to the relevant
Finance Party any claim assigned to it by that Finance Party pursuant to paragraph (a) of
Clause 26.3 (Recovering Finance Partys rights).
 26.5
    
    Exceptions
 (a)
    
    This Clause 26 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 Borrower.
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(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.
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SECTION 10
ADMINISTRATION
 27.
    
    PAYMENT MECHANICS27.1
    
    Payments to the Agent
 (a)
    
    On each date on which the Borrower or a Lender is required to make a payment under a
Finance Document, the Borrower 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 with such bank as the Agent specifies.
 27.2
    
    Distributions by the AgentEach payment received by the Agent under the Finance Documents for another Party shall,
subject to Clause 27.3 (Distributions to the Borrower), Clause 27.4 (Clawback) and Clause
24.16 (Deduction from amounts payable by the 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 with such bank as that Party may notify to the Agent by not less than five
Business Days notice.27.3
    
    Distributions to the BorrowerThe Agent may (with the consent of the Borrower or in accordance with Clause 28 (Set-off))
apply any amount received by it for the Borrower in or towards payment (on the date and in
the currency and funds of receipt) of any amount due from the Borrower under the Finance
Documents or in or towards purchase of any amount of any currency to be so applied.27.4
    
    Clawback
 (a)
    
    Where a sum is to be paid to the Agent under the Finance Documents for another Party,
the 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 pays an amount to another Party and it proves to be the case that the
Agent had not actually received that amount, then the Party to whom that amount (or the
proceeds of any related exchange contract) was paid by the Agent shall on demand refund
the same to the Agent together with interest on that amount from the date of payment to
the
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date of receipt by the Agent, calculated by the Agent to reflect its cost of
funds.
 27.5
    
    Partial payments
 (a)
    
    If the Agent receives a payment that is insufficient to discharge all the amounts then
due and payable by the Borrower under the Finance Documents, the Agent shall apply that
payment towards the obligations of the Borrower under the Finance Documents in the
following order:
 (i)
    
    first, in or towards payment pro rataof any unpaid fees, costs and expenses
of the Agent and the Mandated Lead Arrangers under the Finance Documents;(ii)
    
    secondly, in or towards payment pro rataof any accrued interest, fee or
commission due but unpaid under this Agreement;(iii)
    
    thirdly, in or towards payment pro rataof any principal due but unpaid
under this Agreement; and(iv)
    
    fourthly, in or towards payment pro rataof any other sum due but unpaid
under the Finance Documents.
 (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 the Borrower.
 27.6
    
    No set-off by the Borrower
 (a)
    
    Without prejudice to paragraph (b) of Clause 7 (Repayment), all payments to be made by
the Borrower under the Finance Documents shall be calculated and be made without (and free
and clear of any deduction for) set-off or counterclaim unless:
 (i)
    
    the counterclaim is undisputed or has been confirmed in a final non-appealable
judgement; or(ii)
    
    it is a set-off by the Borrower of any satisfiable (erfüllbar) obligation
(within the meaning of section 387 of the German Civil Code (Bürgerliches
Gesetzbuch)) owed by it under the Finance Documents to any Lender against any
obligation owed and expressed to be due and payable by that Lender to the Borrower
if:
 (1)
    
    at the time the set-off is expressed to take effect, that Lender is a
Defaulting Lender (regardless of the place of
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payment, booking branch of the relevant Lender or currency of
either obligation, provided that if the obligations are in
different currencies, the Borrower may convert either obligation
at a market rate of exchange in its usual course of business for
the purpose of the set-off); and(2)
    
    the Borrower has delivered to the Agent a statement signed by two
directors or other authorised signatories of the Borrower certifying the
validity (Wirksamkeit) of the relevant obligation owed by that Lender to
the Borrower and that such obligation has become due and payable (fällig)
to the Borrower but remains unpaid.
 (b)
    
    The Agent may rely on any statement delivered pursuant to paragraph (a)(ii)(2) above
in accordance with paragraph (a)(ii) of Clause 24.6 (Rights and discretions of the Agent).
 27.7
    
    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.
 27.8
    
    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 the Borrower under any Finance Document.(b)
    
    A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in
the currency in which that Loan 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.(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.
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28.
    
    SET-OFFA Finance Party may set off any matured obligation due from the Borrower under the Finance
Documents against any satisfiable (erfüllbar) obligation (within the meaning of section
387 Civil Code (Bürgerliches Gesetzbuch)) owed by that Finance Party to the Borrower;
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.29.
    
    NOTICES29.1
    
    Communications in writingAny 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 or (except in
the case of a Utilisation Request) by means of telecommunication (telekommunikative
Übermittlung) by electronic mail or attached as an electronic photocopy (pdf., tif. or
any other format agreed with the Agent) to electronic mail.29.2
    
    AddressesThe address, fax number and electronic mail address (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 Borrower, that identified with its name below;(b)
    
    in the case of each Lender, 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 and each Mandated Lead Arranger, that identified with its
name below,
 or any substitute address or 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.29.3
    
    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 when received (zugegangen),
in particular:
 (i)
    
    if by way of fax or telecommunication, 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 29.2 (Addresses), if addressed to that department or officer.
 (b)
    
    Any communication or document to be made or delivered to the 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 the Agents signature below (or any
substitute department or officer as the Agent shall specify for this purpose).(c)
    
    All notices from or to the Borrower shall be sent through the Agent.
 29.4
    
    Notification of address and fax numberPromptly upon receipt of notification of an address, fax number or electronic mail address
or change of address, fax number or electronic mail address pursuant to Clause 29.2
(Addresses) or changing its own address, fax number or electronic mail address the Agent
shall notify the other Parties.29.5
    
    Electronic communication
 (a)
    
    Any communication to be made between the Agent and a Lender 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:
 (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 will be effective
only when actually received in readable form and in the case of any electronic
communication made by a Lender to the Agent only if it is addressed in such a manner as
the Agent shall specify for this purpose.
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29.6
    
    English language
 (a)
    
    Any notice given under or in connection with any Finance Document must be in English.(b)
    
    All other documents (other than the documents referred to in paragraphs (1) and (2) of
Schedule 2 (Conditions Precedent)) 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.
 30.
    
    CALCULATIONS AND CERTIFICATES30.1
    
    AccountsIn 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 (Beweis des ersten Anscheins) of the matters to which they relate.30.2
    
    Certificates and DeterminationsAny certification or determination by a Finance Party of a rate or amount under any
Finance Document is, in the absence of manifest error, prima facie evidence (Beweis des
ersten Anscheins) of the matters to which it relates.30.3
    
    Day count conventionAny 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 European interbank market differs, in
accordance with that market practice.31.
    
    PARTIAL INVALIDITYThe Parties agree that should at any time, any provisions of this Agreement be or become
void (nichtig), invalid or due to any reason ineffective (unwirksam) this will
indisputably (unwiderlegbar) not affect the validity or effectiveness of the remaining
provisions and this Agreement will remain valid and effective, save for the void, invalid
or ineffective provisions, without any Party having to argue (darlegen) and prove
(beweisen) the Parties intent to uphold this Agreement even without the void, invalid or
ineffective provisions.
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The void, invalid or ineffective provision shall be deemed replaced by such valid and
effective provision that in legal and economic terms comes closest to what the Parties
intended or would have intended in accordance with the purpose of this Agreement if they
had considered the point at the time of conclusion of this Agreement.32.
    
    REMEDIES AND WAIVERSNo 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.33.
    
    AMENDMENTS AND WAIVERS33.1
    
    Required consents
 (a)
    
    Subject to Clause 33.2 (Exceptions) any term of the Finance Documents may be amended
or waived only with the consent of the Majority Lenders and the Borrower 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.
 33.2
    
    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;(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 Borrower;(vi)
    
    any provision which expressly requires the consent of all the Lenders; or
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(vii)
    
    Clause 2.3 (Finance Parties rights and obligations), Clause 22 (Changes to
the Lenders) or this Clause 33,
 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 or the
Mandated Lead Arrangers (each in their capacity as such) may not be effected without the
consent of the Agent or, as the case may be, the Mandated Lead Arrangers.
 33.3
    
    Disenfranchisement of Defaulting Lenders
 (a)
    
    For so long as a Defaulting Lender has an Available Commitment, in ascertaining the
Majority Lenders or whether any given percentage (including, for the avoidance of doubt,
unanimity) of the Total Commitments has been obtained to approve any request for a
consent, waiver, amendment or other vote under the Finance Documents, that Defaulting
Lenders Commitment will be reduced by the amount of its Available Commitment.(b)
    
    For the purposes of this Clause 33.3, the Agent may assume that the following Lenders
are Defaulting Lenders:
 (i)
    
    any Lender which has notified the Agent that it has become a Defaulting
Lender;(ii)
    
    any Lender in relation to which it is aware that any of the events or
circumstances referred to in paragraphs (a), (b), (c) or (d) of the definition of
Defaulting Lender in Clause 1.1 (Definitions) has occurred,
 unless it has received notice to the contrary from the Lender concerned (together
with any supporting evidence reasonably requested by the Agent) or the Agent is
otherwise aware that the Lender has ceased to be a Defaulting Lender.
 33.4
    
    Replacement of a Defaulting Lender
 (a)
    
    The Borrower may, at any time a Lender has become and continues to be a Defaulting
Lender, by giving 4 Business Days prior written notice to the Agent and such Lender:
 (i)
    
    replace such Lender by requiring such Lender to (and, to the extent such
assignment and transfer by assumption of contract (Vertragsübernahme) is permitted
by applicable laws and regulations, such Lender shall) assign and transfer by
assumption of contract (Vertragsübernahme) pursuant to Clause 22 (Changes
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to the Lenders) all (and not part only) of its rights and obligations
under this Agreement; or(ii)
    
    require such Lender to (and, to the extent such assignment and transfer by
assumption of contract (Vertragsübernahme) is permitted by applicable laws and
regulations, such Lender shall) assign and transfer by assumption of contract
(Vertragsübernahme) pursuant to Clause 22 (Changes to the Lenders) all (and not
part only) of the undrawn Commitment of the Lender,
 to a Lender or other bank, financial institution, trust, fund or other entity
(a Replacement Lender) selected by the Borrower, and which confirms its
willingness to assume and does assume all the obligations or all the relevant
obligations of the transferring Lender (including the assumption of the
transferring Lenders participations or unfunded participations (as the case may
be) 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
(to the extent that the Agent has not given a notification under Clause 22.8 (Pro
rata interest settlement)), Break Costs and other amounts payable in relation
thereto under the Finance Documents.(b)
    
    Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause
shall be subject to the following conditions:
 (i)
    
    the Borrower shall have no right to replace the Agent;(ii)
    
    neither the Agent nor the Defaulting Lender shall have any obligation to the
Borrower to find a Replacement Lender;(iii)
    
    the transfer must take place no later than 10 days after the notice referred
to in paragraph (a) above; and(iv)
    
    in no event shall the Defaulting Lender be required to pay or surrender to
the Replacement Lender any of the fees received by the Defaulting Lender pursuant
to the Finance Documents.
 34.
    
    CONFIDENTIALITY34.1
    
    Confidential InformationEach Finance Party agrees to keep all Confidential Information confidential and not to
disclose it to anyone, save to the extent permitted by Clause 34.2 (Disclosure of
Confidential Information) and Clause 34.3 (Disclosure to
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numbering service providers), and to ensure that all Confidential Information is protected
with security measures and a degree of care that would apply to its own confidential
information.34.2
    
    Disclosure of Confidential InformationAny Finance Party may disclose:
 (a)
    
    to any of its Affiliates and Related Funds and any of its or their officers,
directors, employees, professional advisers, auditors, partners and Representatives such
Confidential Information as that Finance Party shall consider appropriate if any person to
whom the Confidential Information is to be given pursuant to this paragraph (a) is
informed in writing of its confidential nature and that some or all of such Confidential
Information may be price-sensitive information except that there shall be no such
requirement to so inform if the recipient is subject to professional obligations to
maintain the confidentiality of the information or is otherwise bound by requirements of
confidentiality equivalent to the confidentiality requirements set forth in this Clause
34.2 in relation to the Confidential Information;(b)
    
    to any person:
 (i)
    
    to (or through) whom it assigns or assigns and transfers by assumption of
contract (Vertragsübernahme) (or may potentially assign or assign and transfer by
assumption of contract (Vertragsübernahme)) all or any of its rights and/or
obligations under one or more Finance Documents and to any of that persons
Affiliates, Related Funds, Representatives and professional advisers, in each case
provided that the underlying assignment or assignment and transfer by assumption
of contract (Vertragsübernahme) is permitted pursuant to the terms of this
Agreement;(ii)
    
    with (or through) whom it enters into (or may potentially enter into),
whether directly or indirectly, any sub-participation in relation to, or any other
transaction under which payments are to be made or may be made by reference to,
one or more Finance Documents and/or the Borrower and to any of that persons
Affiliates, Related Funds, Representatives and professional advisers;(iii)
    
    appointed by any Finance Party or by a person to whom paragraph (b)(i) or
(ii) above applies to receive communications, notices, information or documents
delivered pursuant to the
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Finance Documents on its behalf (including, without limitation, any
person appointed under paragraph (c) of Clause 24.13 (Relationship with
the Lenders));(iv)
    
    who invests in or otherwise finances (or may potentially invest in or
otherwise finance), directly or indirectly, any transaction referred to in
paragraph (b)(i) or (b)(ii) above (for the avoidance of doubt including any
investor or a potential investor in a securitisation (or similar transaction) of
a Lenders rights or obligations under the Finance Documents);(v)
    
    to whom information is required or requested to be disclosed by any court of
competent jurisdiction or any governmental, banking, taxation or other regulatory
authority or similar body, the rules of any relevant stock exchange or pursuant
to any applicable law or regulation;(vi)
    
    to whom or for whose benefit that Finance Party charges, assigns or
otherwise creates Security (or may do so) pursuant to Clause 22.7 (Security over
Lenders rights), in each case provided that the underlying provision of Security
is permitted pursuant to the terms of this Agreement;(vii)
    
    to whom information is required to be disclosed in connection with, and for
the purposes of, any litigation, arbitration, administrative or other
investigations, proceedings or disputes;(viii)
    
    who is a Party; or(ix)
    
    with the consent of the Borrower,
 in each case, such Confidential Information as that Finance Party shall consider
appropriate if:
 (1)
    
    in relation to paragraphs (b)(i), (b)(ii) and b(iii) above, the
person to whom the Confidential Information is to be given has entered
into a Confidentiality Undertaking except that there shall be no
requirement for a Confidentiality Undertaking if the recipient is a
professional adviser and is subject to professional obligations to
maintain the confidentiality of the Confidential Information;(2)
    
    in relation to paragraph (b)(iv) above, the person to whom the
Confidential Information is to be given has entered
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into a Confidentiality Undertaking or is otherwise bound by
requirements of confidentiality equivalent to the confidentiality
requirements set forth in this Clause 34.2 in relation to the
Confidential Information they receive and is informed that some
or all of such Confidential Information may be price-sensitive
information;(3)
    
    in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the
person to whom the Confidential Information is to be given is informed of
its confidential nature and that some or all of such Confidential
Information may be price-sensitive information except that there shall be
no requirement to so inform if, in the opinion of that Finance Party, it
is not practicable so to do in the circumstances;
 (c)
    
    to any person appointed by that Finance Party or by a person to whom paragraph (b)(i)
or (b)(ii) above applies to provide administration or settlement services in respect of
one or more of the Finance Documents including without limitation, in relation to the
trading of participations in respect of the Finance Documents, such Confidential
Information as may be required to be disclosed to enable such service provider to provide
any of the services referred to in this paragraph (c) if the service provider to whom the
Confidential Information is to be given has entered into a confidentiality agreement
substantially in the form of the LMA Master Confidentiality Undertaking for Use With
Administration/Settlement Service Providers or such other form of confidentiality
undertaking agreed between the Borrower and the relevant Finance Party;(d)
    
    to any rating agency (including its professional advisers) such Confidential
Information as may be required to be disclosed to enable such rating agency to carry out
its normal rating activities in relation to the Finance Documents and/or the Borrower if
the rating agency to whom the Confidential Information is to be given is informed of its
confidential nature and that some or all of such Confidential Information may be
price-sensitive information.
 34.3
    
    Disclosure to numbering service providers
 (a)
    
    Any Finance Party may disclose to any national or international numbering service
provider appointed by that Finance Party to provide identification numbering services in
respect of this Agreement, the Facility and/or the Borrower the following information:
 (i)
    
    name of Borrower;
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(ii)
    
    country of domicile of Borrower;(iii)
    
    place of incorporation of Borrower;(iv)
    
    date of
this Agreement;(v)
    
    the names of the Agent and the Mandated Lead Arrangers;(vi)
    
    amount of Total Commitments;(vii)
    
    currency of the Facility;(viii)
    
    type of the Facility;(ix)
    
    ranking of the Facility; and(x)
    
    Termination Date for the Facility,
 to enable such numbering service provider to provide its usual syndicated loan
numbering identification services.(b)
    
    The Parties acknowledge and agree that each identification number assigned to this
Agreement, the Facility and/or the Borrower by a numbering service provider and the
information associated with each such number may be disclosed to users of its services in
accordance with the standard terms and conditions of that numbering service provider.(c)
    
    The Borrower represents that none of the information set out in paragraphs (i) to (x)
of paragraph (a) above is unpublished price-sensitive information.(d)
    
    In the event:
 (i)
    
    of any amendment or restatement of this Agreement;(ii)
    
    of changes to any of the information previously supplied pursuant to
paragraph (a) above; or(iii)
    
    any Finance Party proposes to disclose to any numbering service provider
any information other than the information referred to in paragraph (a) above,
 the Agent or (in the case of sub-paragraph (iii) above) the relevant Finance
Party may request the Borrower to permit disclosure to any numbering service
provider for the purposes referred to in paragraph (a) above of:
 90




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(1)
    
    the date of such amendment or restatement; or(2)
    
    such changes or other information.
 The Borrower shall permit such disclosure if, in its reasonable opinion, such
disclosure does not conflict with statutory rules of confidentiality applicable to
the Borrower or its directors, including the rules of the German Securities
Trading Act (Wertpapierhandelsgesetz) relating to unpublished price-sensitive
information and if it does permit such disclosure, the Borrower will be deemed to
have represented that the respective information is not unpublished
price-sensitive information.(e)
    
    The Agent shall notify the Borrower and the other Finance Parties of:
 (i)
    
    the name of any numbering service provider appointed by the Agent in respect
of this Agreement, the Facility and/or the Borrower; and(ii)
    
    the number or, as the case may be, numbers assigned to this Agreement, the
Facility and/or the Borrower by such numbering service provider.
 34.4
    
    Entire agreementThis Clause 34 (Confidentiality) constitutes the entire agreement between the Parties in
relation to the obligations of the Finance Parties under the Finance Documents regarding
Confidential Information and supersedes any previous agreement, whether express or
implied, regarding Confidential Information.34.5
    
    Inside informationEach of the Finance Parties acknowledges that some or all of the Confidential Information
is or may be price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation including securities law relating to
insider dealing and market abuse and each of the Finance Parties undertakes not to use any
Confidential Information for any unlawful purpose.34.6
    
    Notification of disclosureEach of the Finance Parties agrees (to the extent permitted by law and regulation) to
inform the Borrower:
 (a)
    
    of the circumstances of any disclosure of Confidential Information made pursuant to
paragraph (b)(v) of Clause 34.2 (Disclosure of Confidential Information) except where such
disclosure is made to any of the persons referred to in that paragraph during the ordinary
course of its supervisory or regulatory function; and
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(b)
    
    upon becoming aware that Confidential Information has been disclosed in breach of this
Clause 34 (Confidentiality).
 34.7
    
    Continuing obligationsThe obligations in this Clause 34 (Confidentiality) are continuing and, in particular,
shall survive and remain binding on each Finance Party for a period of twelve months from
the earlier of:
 (a)
    
    the date on which all amounts payable by the Borrower under or in connection with this
Agreement have been paid in full and all Commitments have been cancelled or otherwise
cease to be available; and(b)
    
    the date on which such Finance Party otherwise ceases to be a Finance Party.
 92




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SECTION 11
GOVERNING LAW AND ENFORCEMENT
 35.
    
    GOVERNING LAWThis Agreement and any non-contractual obligations arising out of or in connection with it
are governed by German law.36.
    
    JURISDICTIONThe district court (Landgericht)of Frankfurt am Main shall have non-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 or
any non-contractual obligation arising out of or in connection with this Agreement).37.
    
    CONCLUSION OF THIS AGREEMENT (VERTRAGSSCHLUSS)37.1
    
    The Parties to this Agreement may choose to conclude this Agreement by an exchange of signed
signature page(s), transmitted by means of telecommunication (telekommunikative Übermittlung)by
way of fax or attached as an electronic photocopy (pdf., tif., etc.) to electronic mail.37.2
    
    If the Parties to this Agreement choose to conclude this Agreement in accordance with Clause
37.1 above, they will transmit the signed signature page(s) of this Agreement to Dr. Thomas O.
Cron, Hengeler Mueller, Fax: +49
69 17095 7 380, E-mail: thomas.cron@hengeler.com (the Recipient). The Agreement will be
considered concluded once the Recipient has actually received the signed signature page(s)
(Zugang der Unterschriftsseite(n))from all Parties to this Agreement and at the time of
the receipt of the last outstanding signature page(s).37.3
    
    For the purposes of this Clause 37 only, the Parties to this Agreement appoint the Recipient
as agent of receipt (Empfangsvertreter) and expressly allow (gestatten) the Recipient to collect
the signed signature page(s) from all and for all Parties to this Agreement. For the avoidance of
doubt, the Recipient will have no further duties connected with its position as Recipient. In
particular, the Recipient may assume the conformity to the authentic original(s) of the signature page(s)
transmitted to it by means of telecommunication, the genuineness of all signatures on the
original signature page(s) and the signing authority of the signatories.
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SCHEDULE 1 The
Original Lenders
 CommitmentName of Original Lender
    
    (EUR)Deutsche Bank Luxembourg S.A.
    
    
    57,500,000.00JPMorgan Chase Bank, N.A.
    
    
    57,500,000.00The Royal Bank of Scotland plc
(Niederlassung Frankfurt)
    
    
    57,500,000.00Banco Bilbao Vizcaya Argentaria, S.A.
    
    
    57,500,000.00Bank of China Limited
    
    
    57,500,000.00Banco Santander S.A.
    
    
    57,500,000.00The Bank of Tokyo-Mitsubishi UFJ, Ltd.
    
    
    57,500,000.00Barclays Bank PLC
    
    
    57,500,000.00BNP Paribas S.A., Niederlassung Frankfurt
am Main
    
    
    57,500,000.00Citigroup Global Markets Deutschland AG
& Co.KGaA
    
    
    57,500,000.00COMMERZBANK Aktiengesellschaft
Filiale Luxemburg
    
    
    57,500,000.00Deutsche Postbank International S.A.
    
    
    57,500,000.00DZ Bank AG Deutsche Zentral-
Genossenschaftsbank, Frankfurt
    
    
    57,500,000.00Landesbank Hessen-Thüringen Girozentrale
    
    
    57,500,000.00ING Bank N.V.
    
    
    57,500,000.00Intesa Sanpaolo S.p.A.
    
    
    57,500,000.00Landesbank Baden-Württemberg
    
    
    57,500,000.00Nomura International plc
    
    
    57,500,000.00Nordea Bank Danmark A/S
    
    
    57,500,000.00Société Générale S.A.
    
    
    57,500,000.00Sumitomo Mitsui Banking Corporation
    
    
    57,500,000.00UniCredit Luxembourg S.A.
    
    
    57,500,000.00WestLB AG
    
    
    57,500,000.00Bank of America, N.A
    
    
    35,500,000.00Credit Suisse
    
    
    35,500,000.00
 94




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CommitmentName of Original Lender
    
    (EUR)KfW IPEX-Bank GmbH
    
    
    35,500,000.00Morgan Stanley Bank, N.A.
    
    
    35,500,000.00UBS AG, London Branch
    
    
    35,500,000.00TOTAL
    
    EUR 1,500,000,000.00
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SCHEDULE 2
CONDITIONS PRECEDENT
 (1)
    
    Copy of the articles of association (Satzung) of the Borrower;(2)
    
    recent and up-to-date official excerpt (amtlicher Ausdruck) from the competent
commercial register relating to the Borrower;(3)
    
    specimen of the signatures of each person authorised to execute the Finance Documents
or any document or notice in connection with any Finance Document;(4)
    
    legal opinion from Allen & Overy LLP, legal advisors to the Borrower, as to matters
of German law on the due incorporation of, the capacity and authority of the Borrower and
the valid representation of the Borrower at the execution of this Agreement;(5)
    
    legal opinion from Hengeler Mueller, legal advisors to the Mandated Lead Arrangers
and the Lenders as to matters of German law on the legality, validity and enforceability
of this Agreement;(6)
    
    evidence that the fees, costs and expenses then due from the Borrower pursuant to
Clause 12 (Fees) and Clause 17 (Costs and expenses) have been paid or will be paid by the
first Utilisation Date;(7)
    
    a certificate of an authorised signatory of the Borrower certifying that each copy
document specified in this Schedule 2 is correct, complete and in full force and effect
as of a date no earlier than the date of this Agreement;(8)
    
    the Original Financial Statements of the Borrower;(9)
    
    a list of the initial Material Subsidiaries evidencing compliance with the Minimum
Coverage Test; and(10)
    
    evidence of the cancellation and full repayment of the Existing 2004 Facility.
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SCHEDULE 3
Requests
 Utilisation Request
  Agent
   SAP
AG  EUR 1,500,000,000 Credit Facility Agreement
dated 15 September 2009 (the Agreement)
 1.
    
    We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement
have the same meaning in this Utilisation Request unless given a different meaning in this
Utilisation Request.2.
    
    We wish to borrow a Loan on the following terms:
 Proposed Utilisation Date:
    
    []
    
    (or, if that is not a Business Day, the next Business Day)Currency of Loan:
    
    []Amount:
    
    []
    
    or, if less, the Available FacilityInterest Period:
    
    []
 3.
    
    We confirm that (i) each condition specified in Clause 4.2(a)(i) (Further conditions
precedent) is satisfied on the date of this Utilisation Request and (ii) the Repeating
Representations are true in all material respects on the date of this Utilisation Request
provided that the Utilisation requested hereunder [does not require an Approval]/[requires an
Approval which has been duly obtained and is in full force and effect]1 and
accordingly with regard to the Utilisation requested hereunder only, the Repeating
Representations set out in Clauses 18.3 (b) (Non-conflict with other obligations), 18.4
(Power and authority)and 18.5 (Validity and admissibility in evidence) are made without the
proviso contained in each of them.
 
 1
    
    Delete as appropriate. If the requested Utilisation is subject to an Approval the
Agent needs to be provided with the evidence referred to in Clause 4.2 (b) (Further
conditions precedent)of the Agreement together with such Utilisation Request. 97




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4.
    
    The proceeds of this Loan should be credited to [account].5.
    
    This Utilisation Request is irrevocable.
 Yours faithfullyauthorised signatory forSAP AG
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SCHEDULE 4
Mandatory Cost Formulae
 1.
    
    The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its
functions), or (b) the requirements of the European Central Bank.2.
    
    On the first day of each Interest Period (or as soon as possible thereafter) the Agent shall
calculate, as a percentage rate, a rate (the Additional Cost Rate) for each Lender, in
accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders Additional Cost Rates (weighted in proportion to
the percentage participation of each Lender in the relevant Loan) and will be expressed as a
percentage rate per annum.3.
    
    The Additional Cost Rate for any Lender lending from a Facility Office in a Participating
Member State will be the percentage notified by that Lender to the Agent. This percentage
will be certified by that Lender in its notice to the Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lenders participation in all
Loans made from that Facility Office) of complying with the minimum reserve requirements of
the European Central Bank in respect of loans made from that Facility Office.4.
    
    The Additional Cost Rate for any Lender lending from a Facility Office in the United Kingdom
will be calculated by the Agent as follows:
 (a)
    
    in relation to a sterling Loan:
 AB
+
C(B-
D)
+
E ́
0.01
    
    per cent. per annum100
-(A
+C)
 (b)
    
    in relation to a Loan in any currency other than sterling:
 E ́0.01
    

    
    per cent. per annum.300
 Where:(A)
    
    is the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as an interest
free cash ratio deposit with the Bank of England to comply with cash ratio requirements.
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(B)
    
    is the percentage rate of interest (excluding the Margin and the Mandatory Cost and,
if the Loan is an Unpaid Sum, the additional rate of interest specified in paragraph (a)
of Clause 9.3 (Default interest)) payable for the relevant Interest Period on the Loan.(C)
    
    is the percentage (if any) of Eligible Liabilities which that Lender is required from
time to time to maintain as interest bearing Special Deposits with the Bank of England.(D)
    
    is the percentage rate per annum payable by the Bank of England to the Agent on
interest bearing Special Deposits.(E)
    
    is designed to compensate Lenders for amounts payable under the Fees Rules and is
calculated by the Agent as being the average of the most recent rates of charge supplied
by the Reference Banks to the Agent pursuant to paragraph 7 below and expressed in pounds
per £1,000,000.
 5.
    
    For the purposes of this Schedule:
 (a)
    
    Eligible Liabilities and Special Deposits have the meanings given to them from
time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate)
by the Bank of England;(b)
    
    Fees Rules means the rules on periodic fees contained in the Financial Services
Authority Fees Manual or such other law or regulation as may be in force from time to time
in respect of the payment of fees for the acceptance of deposits;(c)
    
    Fee Tariffs means the fee tariffs specified in the Fees Rules under the activity
group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant
to the Fees Rules but taking into account any applicable discount rate); and(d)
    
    Tariff Base has the meaning given to it in, and will be calculated in accordance
with, the Fees Rules.
 6.
    
    In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A
negative result obtained by subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places.7.
    
    If requested by the Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Agent, the rate of charge
payable by that Reference Bank to the Financial Services Authority pursuant to the Fees Rules
in respect of the relevant financial year of
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the Financial Services Authority (calculated for this purpose by that Reference Bank as
being the average of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
 8.
    
    Each Lender shall supply any information required by the Agent for the purpose of
calculating its Additional Cost Rate. In particular, but without limitation, each Lender
shall supply the following information on or prior to the date on which it becomes a Lender:
 (a)
    
    the jurisdiction of its Facility Office; and(b)
    
    any other information that the Agent may reasonably require for such purpose.
 Each Lender shall promptly notify the Agent of any change to the information provided by
it pursuant to this paragraph.
 9.
    
    The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Agent based upon
the information supplied to it pursuant to paragraphs 7 and 8 above and on the assumption
that, unless a Lender notifies the Agent to the contrary, each Lenders obligations in
relation to cash ratio deposits and Special Deposits are the same as those of a typical bank
from its jurisdiction of incorporation with a Facility Office in the same jurisdiction as its
Facility Office.10.
    
    The Agent shall have no liability to any person if such determination results in an Additional
Cost Rate which over or under compensates any Lender and shall be entitled to assume that the
information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is
true and correct in all respects.11.
    
    The Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender
based on the information provided by each Lender and each Reference Bank pursuant to
paragraphs 3, 7 and 8 above.12.
    
    Any determination by the Agent pursuant to this Schedule in relation to a formula, the
Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the absence of
manifest error, be conclusive and binding on all Parties.13.
    
    The Agent may from time to time, after consultation with the Borrower and the
Lenders, determine and notify to all Parties any amendments which are required to be made
to this Schedule in order to comply with any change in law,
 101




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##### 



regulation or any requirements from time to time imposed by the Bank of England, the
Financial Services Authority or the European Central Bank (or, in any case, any other
authority which replaces all or any of its functions) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all Parties.
 102




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##### 



SCHEDULE 5
FORMS OF TRANSFER AND ASSIGNMENT CERTIFICATES
 Part I
Form of Transfer Certificate
 
 From:
    
    [The Existing Lender] (the Existing Lender) and [The New Lender] (the New Lender)
  SAP
AG  EUR 1,500,000,000 Credit Facility Agreement
dated 15 September 2009 (the Agreement )
 1.
    
    We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement
have the same meaning in this Transfer Certificate unless given a different meaning in this
Transfer Certificate.2.
    
    We refer to Clause 22.5 (Procedure for assignment and transfer by assumption of contract
(Vertragsübernahme)):
 (a)
    
    The Existing Lender and the New Lender agree to the Existing Lender assigning and
transferring to the New Lender by assumption of contract (Vertragsübernahme) all or part
of the Existing Lenders Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 22.5 (Procedure for assignment and transfer by assumption of
contract (Vertragsübernahme)).(b)
    
    The proposed Transfer Date is [].(c)
    
    The Facility Office and address, fax number and attention details for notices of the
New Lender for the purposes of Clause 29.2 (Addresses) are set out in the Schedule.
 3.
    
    The New Lender expressly acknowledges the limitations on the Existing Lenders obligations
set out in paragraph (c) of Clause 22.4 (Limitation of responsibility of Existing Lenders).The New Lender expressly confirms that it [can/cannot] exempt the Agent from the
restrictions pursuant to section 181 Civil Code (Bürgerliches Gesetzbuch)
 103




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##### 



and similar restrictions applicable to it pursuant to any other applicable law as provided
for in paragraph (c) of Clause 24.1 (Appointment of the Agent).
 4.
    
    The New Lender confirms, for the benefit of the Agent and without liability to the Borrower,
that it is [a Qualifying Lender (other than a Treaty Lender)][a Treaty Lender][not a
Qualifying Lender].5.
    
    This Transfer Certificate 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 this Transfer
Certificate.6.
    
    This Transfer Certificate and any non-contractual obligations arising out of or in
connection with it are governed by German law.
 104




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##### 



THE SCHEDULE
 Commitment/rights and obligations to be assigned and transferred by assumption
of contract ( Vertragsübernahme )
 insert relevant details
 Facility Office address, fax number and attention details for notices and account
details for payments
 [Existing Lender]
    
    [New Lender]By:
    
    By:This Transfer Certificate is accepted by the Agent on [   ].[Agent]By:
 105




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##### 



Part II
Form of Assignment Certificate
  From:
    
    [The Existing Lender] (the Existing Lender) and [The New Lender] (the New Lender)
  SAP
AG  EUR 1,500,000,000 Credit Facility Agreement
dated 15 September 2009 (the Agreement )
 1.
    
    We refer to the Agreement. This is an Assignment Certificate. Terms defined in the Agreement
have the same meaning in this Assignment Certificate unless given a different meaning in this
Assignment Certificate.2.
    
    We refer to Clause 22.2(d) (Conditions of assignment or assignment and transfer by
assumption of contract(Vertragsübernahme)) of the Agreement:
 (a)
    
    The Existing Lender and the New Lender agree to the Existing Lender assigning to the
New Lender all or part of the Existing Lenders rights, as referred to in the Schedule.(b)
    
    The proposed Assignment Date is [].(c)
    
    The Facility Office and address, fax number and attention details for notices of the
New Lender for the purposes of Clause 29.2 (Addresses) of the Agreement are set out in the
Schedule.
 3.
    
    The New Lender confirms that it will assume the same obligations to the other Finance
Parties as it would have been under if the New Lender had been an Original Lender to the
extent such obligations relate to the rights proposed to be assigned hereby, including,
without limitation, any obligations under Clause 26 (Sharing among the Finance Parties) of
the Agreement.4.
    
    The New Lender expressly acknowledges the limitations on the Existing Lenders obligations
set out in paragraph (c) of Clause 22.4 (Limitation of responsibility of Existing Lenders) of
the Agreement.The New Lender expressly confirms that it [can/cannot] exempt the Agent from the
restrictions pursuant to section 181 Civil Code (Bürgerliches Gesetzbuch) and similar
restrictions applicable to it pursuant to any other applicable law as provided for in
paragraph (c) of Clause 24.1 (Appointment of the Agent).
 106




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5.
    
    The New Lender confirms, for the benefit of the Agent and without liability to the Borrower,
that it is [a Qualifying Lender (other than a Treaty Lender)][a Treaty Lender][not a
Qualifying Lender].6.
    
    This Assignment Certificate 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 this Assignment
Certificate.7.
    
    This Assignment Certificate and any non-contractual obligations arising out of or in
connection with it are governed by German law.
 107




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##### 



THE SCHEDULE
 Rights to be assigned
 insert relevant details  Facility Office address, fax number and attention details for notices and account
details for payments
 [Existing Lender]
    
    [New Lender]By:
    
    By:This Assignment Certificate is accepted by the Agent on [      ].[Agent]By:
 108




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##### 



SCHEDULE 6
Existing Security
 Name of Borrower or Material Subsidiary
    
    Security
    
    Total Principal Amount of Financial Indebtedness Secured
  109




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##### 



SCHEDULE 7
CONFIDENTIALITY UNDERTAKING
 [Letterhead of Lender]
 To:
    
    [insert name of contemplated recipient of information]
 Re:
    
    The Agreement (Syndicated Revolving Credit Facility Agreement)
 Borrower:
    
    SAP AGDate:
    
    15 September 2009Amount:
    
    EUR 1,500,000,000Agent:
    
    [Deutsche Bank Luxembourg S.A.]
   1.
    
    Confidentiality UndertakingYou undertake (a) to keep the Confidential Information
confidential and not to disclose it to anyone except as provided for by paragraph 2 below and
to ensure that the Confidential Information is protected with security measures and a degree
of care that would apply to your own confidential information, (b) to keep confidential and
not to disclose to anyone the fact that the Confidential Information has been made available
or that discussions or negotiations are taking place or have taken place between us in
connection with the Facility (c) to use the Confidential Information only for the Permitted
Purpose, (d) to use all reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed under paragraph 2(c) below) acknowledges and
complies with the provisions of this letter as if that person were also a party to it, and
(d) not to make enquiries of any member of the Group or any of their officers, directors,
employees or professional advisers relating directly or indirectly to the Facility.2.
    
    Permitted DisclosureWe agree that you may disclose Confidential Information:
 (a)
    
    to members of the Participant Group and their officers, directors, employees and
professional advisers to the extent necessary for the Permitted Purpose and to any
auditors of members of the Participant Group;(b)
    
    subject to the requirements of the Agreement, to any person to (or through) whom you
assign or transfer (or may potentially assign or
 110




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##### 



transfer) all or any of the rights, benefits and obligations which you may acquire
under the Agreement or with (or through) whom you enter 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, the Agreement or the Borrower or
any member of the Group so long as that person has delivered a letter to you in
equivalent form to this letter; and
 (c)
    
    (i) where requested or required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body, (ii) where required by
the rules of any stock exchange on which the shares or other securities of any member of
the Participant Group are listed or (iii) where required by the laws or regulations of any
country with jurisdiction over the affairs of any member of the Participant Group.
 Further, notwithstanding any of the provisions of this letter, we agree that you may
disclose to any and all persons, without limitation of any kind, the US tax treatment and
US tax structure of the transaction and any materials of any kind (including opinions or
other tax analysis) that are provided to you relating thereto other than any information
the disclosure of which would breach applicable securities laws.
 3.
    
    Notification of Required or Unauthorised DisclosureYou agree (to the extent permitted by
law) to inform us of the full circumstances of any disclosure under paragraph 2 (c) or upon
becoming aware that Confidential Information has been disclosed in breach of this letter.4.
    
    Return of CopiesIf we so request in writing, you shall return all Confidential Information
supplied to you by us and destroy or permanently erase all copies of Confidential Information
made by you and use all reasonable endeavours to ensure that anyone to whom you have supplied
any Confidential Information destroys or permanently erases such Confidential Information and
any copies made by them, in each case save to the extent that you or the recipients are
required to retain any such Confidential Information by any applicable law, rule or
regulation or by any competent judicial, governmental, supervisory or regulatory body or in
accordance with internal policy, or where the Confidential Information has been disclosed
under paragraph 2(b) and (c) above.5.
    
    Continuing ObligationsThe obligations in this letter are continuing and, in particular,
shall survive the termination of any discussions or negotiations between you and us.
Notwithstanding the previous sentence, the obligations in this letter shall cease (a) if you
become a party to the agreement documenting the Facility or (b) the date falling twelve
months after the date of this letter, provided that in case of this paragraph (b) only if you
have received a request
 111




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##### 



pursuant to paragraph 4 (Return of Copies) within that twelve-month period and have not
complied with such request by the end of such twelve-month period the obligations in this
letter shall continue until you have complied with such request, provided always that
(notwithstanding anything to the contrary contained herein) no obligations in this letter
shall continue for any reason whatsoever beyond, and shall irrevocably and automatically
expire immediately upon, the date falling twenty-four months after the date of this
letter.
 6.
    
    No Representation; Consequences of Breach, etcYou acknowledge and agree that:
 (a)
    
    neither we nor any member of the Group nor any of our or their respective officers,
employees or advisers (each a Relevant Person) (i) make any representation or warranty,
express or implied, as to, or assume any responsibility for, the accuracy, reliability or
completeness of any of the Confidential Information or any other information supplied by
us or the assumptions on which it is based or (ii) shall be under any obligation to update
or correct any inaccuracy in the Confidential Information or any other information
supplied by us or be otherwise liable to you or any other person in respect to the
Confidential Information or any such information; and(b)
    
    we or members of the Group may be irreparably harmed by the breach of the terms hereof
and damages may not be an adequate remedy; each Relevant Person may be granted an
injunction or specific performance for any threatened or actual breach of the provisions
of this letter by you.
 7.
    
    No Waiver; Amendments, etcThis letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject of this letter. No
failure or delay in exercising any right, power or privilege hereunder will operate as a
waiver thereof nor will any single or partial exercise of any right, power or privilege
preclude any further exercise thereof or the exercise of any other right, power or privileges
hereunder. The terms of this letter and your obligations hereunder may only be amended or
modified by written agreement between us with the prior written consent of SAP AG.8.
    
    Inside InformationYou acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such information may be regulated or
prohibited by applicable legislation relating to insider dealing and you undertake not to use
any Confidential Information for any unlawful purpose.9.
    
    Nature of UndertakingsThe undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also
 112




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##### 



given for the benefit of SAP AG and each other member of the Group  in the form of a
third party agreement (echter berechtigender Vertrag zugunsten Dritter, section 328 of the
German Civil Code (Bürgerliches Gesetzbuch)).
 10.
    
    Third Party RightsSubject to sections 6 and 9 above, the terms of this letter may be enforced
and relied upon only by you or us. Notwithstanding any provision of this letter, the parties to
this letter require the consent of the Borrower but not of any other Relevant Person to rescind or
vary this letter at any time.11.
    
    Governing Law and JurisdictionThis letter (including the agreement constituted by your
acknowledgement of its terms) shall be governed by and construed in accordance with the laws of
the Federal Republic of Germany and the parties submit to the non-exclusive jurisdiction of the
district courts (Landgericht) of Frankfurt am Main.12.
    
    DefinitionsIn this letter (including the acknowledgement set out below) terms defined in the
Agreement shall, unless the context otherwise requires, have the same meaning and:Confidential Information means any information relating to the Borrower, the Group, the
Agreement and the Facility including, without limitation, the related information package
provided to you by us or any of our affiliates or advisers, in whatever form, and includes
information given orally and any document, electronic file or any other way of
representing or recording information which contains or is derived or copied from such
information but excludes information that (a) is or becomes public knowledge other than as
a direct or indirect result of any breach of this letter or (b) is known (and has been
lawfully obtained) by you before the date the information is disclosed to you by us or any
of our affiliates or advisers or is lawfully obtained by you thereafter, other than from a
source which is connected with the Group and which, in either case, as far as you are
aware, has not been obtained in violation of, and is not otherwise subject to, any
obligation of confidentiality;Facility means the revolving loan facility made available under the Agreement;Group means the Borrower and each of its affiliated entities as contemplated in section
15 of the German Stock Corporation Act (Aktiengesetz);Participant Group means you and each of your affiliated entities as contemplated in
section 15 of the German Stock Corporation Act (Aktiengesetz);Permitted Purpose means exclusively considering and evaluating whether to participate in
the Facility.
 113




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##### 



To:
    
    1. [Lender]
2. SAP AG
  
   114




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##### 



SCHEDULE 8
Timetables
 Loans in OptionalLoans in euro
    
    CurrenciesDelivery of a request for approval of a
currency as an Optional Currency
(Clause 4.3(b) (Conditions relating to
Optional Currencies))
    
    -
    
    U-7 10.00amAgent notifies the Borrower if a currency is
approved as an Optional Currency in
accordance with Clause 4.3(b) (Conditions
relating to Optional Currencies)
    
    -
    
    U-4 10.00amDelivery of a duly completed Utilisation
Request (Clause 5.1 (Delivery of a Utilisation
Request))
    
    U-3 11.00am
    
    U-4 11.00amAgent determines (in relation to a Utilisation)
the Base Currency Amount of the Loan, if
required under Clause 5.4 (Lenders
participation)
    
    -
    
    U-3 2.00pmAgent notifies the Lenders of the Loan in
accordance with Clause 5.4 (Lenders
participation)
    
    U-3 3.00pm
    
    U-3 3.00pmAgent receives a notification from a Lender
under Clause 6.2 (Unavailability of a
currency)
    
    -
    
    U-2 9.00amAgent gives notice in accordance with
Clause 6.2 (Unavailability of a currency)
    
    -
    
    U-2 11.00am
 115




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##### 



Loans in OptionalLoans in euro
    
    CurrenciesEURIBOR or LIBOR is fixed
    
    Quotation Day
as of 11:00am
Brussels time
in respect of
EURIBOR
    
    Quotation Day as of
11:00am London time
in respect of LIBOR
 
 U = Utilisation DateU - X = X Business Days prior to Utilisation Date 116




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##### 



SCHEDULE 9
Reservations
 1.
    
    The obligations expressed to be assumed under the Finance Documents are subject to the
limitations arising from the laws relating to bankruptcy, insolvency and all other laws
affecting the rights of creditors generally.2.
    
    Any enforcement of the Finance Documents will be subject to generally applicable laws as
applied by the courts or other competent authority of Germany.3.
    
    General German law requirements of fair dealing (Treu und Glauben) and public policy may
lead to the application of general principles of German law being upheld in German courts or
may render contracts or commitments void, voidable, not enforceable in accordance with their
terms, or unenforceable.4.
    
    As regards payments made by a German resident to a non-resident, a notification has to be
made to Deutsche Bundesbank for statistical purposes pursuant to section 59 et seq.German
Foreign Trade and Payment Regulation (Außenwirtschaftsverordnung). The notification has to be
filed by the relevant payor. Any omission of such notification may trigger an administrative
fine (Bußgeld) under the Foreign Trade and Payment Regulation, but will neither affect the
validity or enforceability of the Facility Agreement nor otherwise cause disadvantageous
legal consequences for non-resident legal entities or individuals receiving such payment.5.
    
    Pursuant to section 489 of the German Civil Code (Bürgerliches Gesetzbuch) the Borrower may
repay a loan facility with a variable interest rate at any time with three months notice and
may repay any loan facility with a fixed interest rate at the end of each period for which
the interest is fixed, in each case without having to pay prepayment or breakage costs.6.
    
    If a shareholder of a German GmbH (Gesellschaft mit beschränkter Haftung) has granted a loan
to the GmbH the claim for repayment of such loan will be subordinated as a matter of
statutory law in insolvency proceedings over such GmbHs assets. The same rule applies in
connection with other economically equivalent payment claims of the shareholder against the
company. Under certain circumstances this may also apply to a third party if such third
party has a certain degree of control over the management of the GmbH which puts it in a
shareholder-like position.
 117




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##### 



These principles will, in principle, apply mutatis mutandisto a stock corporation
(Aktiengesellschaft) and to third parties having the above-described degree of control
over the management of a stock corporation.
 7.
    
    If and to the extent that a claim of a Finance Party against the Borrower were to be
construed to constitute a shareholder loan pursuant to the criteria set out in item 6 above,
any payment by the Borrower on such claim effected within one year prior to the application
for the opening of insolvency proceedings would be subject to claw-back by the insolvency
receiver.8.
    
    Where contractual or legal consequences are attached to the occurrence or non-occurrence of
an event a German court would have discretion to decide (upon evidence being brought to it)
whether such event has occurred.9.
    
    Any provision in the Finance Documents providing that certain certifications or
determinations will be conclusive, binding and authoritative will not necessarily prevent
judicial enquiry into the merits of any claim by any aggrieved party.10.
    
    Any provision in the Finance Documents stating that a notice or other expression of an
intention or instruction or power of attorney is irrevocable may be open to challenge in
circumstances where there have been material changes in the underlying situation.11.
    
    Where under the provisions of the Finance Documents any party is vested with a discretion or
may determine a matter in its opinion, the laws of Germany may require that such a discretion is
exercised reasonably or that such opinion is based on reasonable grounds.12.
    
    If a German court considers it impossible or unduly burdensome for an obligation to be
performed the debtor is discharged from performing such obligation; the debtor may however be held
liable for damages.13.
    
    Within the scope of section 354a of the German Commercial Code
(Handelsgesetzbuch), an assignment of monetary claims which are governed by German law
would be valid even where the Facility Agreement states that a claim shall not be
assignable. This does, however, not apply to claims under a loan agreement where the
creditor is a credit institution (Kreditinstitut) within the meaning of the German Banking
Act (Kreditwesengesetz).14.
    
    There is no final precedent in Germany for holding telefax or electronic communications legal,
valid and binding in all circumstances; however, where there are no particular legal requirements
as to the form, the German Federal Supreme Court has held that any telefax communication actually
received by the addressee will be deemed validly given.
 118




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##### 



15.
    
    If the performance of an obligation is contrary to the exchange control regulations of a
member state of the International Monetary Fund, that obligation may be unenforceable in Germany
by reason of section 2 (b) of Article VIII of the International Monetary Fund Agreement.
 119




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##### 



SCHEDULE 10
Form of Increase Confirmation
  Increase Lender Increase Lender
  SAP AG  EUR 1,500,000,000 Credit Facility Agreement
dated 15 September 2009 (the Agreement )
 1.
    
    We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement
have the same meaning in this Increase Confirmation unless given a different meaning in this
Increase Confirmation.2.
    
    We refer to Clause 2.2 (Increase) of the Agreement.3.
    
    The Increase Lender agrees to assume and will assume all of the obligations corresponding to
the Commitment specified in the Schedule (the Relevant Commitment) as if it was an Original
Lender under the Agreement in relation to the part of the increased Commitments which it is to
assume.4.
    
    The proposed date on which the increase in relation to the Increase Lender and the Relevant
Commitment is to take effect (the Increase Date)
is [  ].5.
    
    [On the Increase Date, the Increase Lender becomes a Party as a Lender.]
16.
    
    [The Facility Office and address, fax number and attention details for notices to the
Increase Lender for the purposes of Clause 29.2 (Addresses) of the Agreement are set out in
the Schedule.] 27.
    
    The Increase Lender expressly acknowledges the limitations on the Lenders obligations
referred to in paragraph (f) of Clause 2.2 (Increase) of the Agreement.[The Increase Lender expressly confirms that it [can/cannot] exempt the Agent from the
restrictions pursuant to section 181 Civil Code (Bürgerliches Gesetzbuch) and similar
restrictions applicable to it pursuant to any other applicable law as provided for in
paragraph (c) of Clause 24.1 (Appointment of the Agent).] 3
 
 1
    
    Only required if Increase Lender is not a Lender prior to the Increase Date.2
    
    Only required if Increase Lender is not a Lender prior to the Increase Date.3
    
    Only required if Increase Lender is not a Lender prior to the Increase Date. 120




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##### 



8.
    
    [The Increase Lender confirms, for the benefit of the Agent and without liability to the
Borrower, that it is [a Qualifying Lender (other than a Treaty Lender)][a Treaty Lender][not a
Qualifying Lender].] 49.
    
    This Increase Confirmation 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 this Increase
Confirmation.10.
    
    This Increase Confirmation and any non-contractual obligations arising out of or in connection
with it are governed by German law.
 
 4
    
    Only required if Increase Lender is not a Lender prior to the Increase Date. 121




---



##### 



THE SCHEDULE
 Relevant Commitment/rights and obligations to be assumed by the Increase Lender
 insert relevant details
 Facility Office address, fax number and attention details for notices and account details
for payments
      122




---



##### 



SIGNATURES
 THE BORROWER
 By:
    
    /s/ DR. W. BRANDT           M. JUNGEAddress:
    
    Dietmar-Hopp-Allee 1669190 WalldorfFax:
    
    +49 6227 7 44778Attention:
    
    Joerg WiemerTHE MANDATED LEAD ARRANGERSDEUTSCHE BANK AGBy:
    
    /s/ M. FEYERABEND           H. LOHAddress:
    
    Große Gallusstr. 10-1460311 Frankfurt am MainFax:
    
    +49 69 910 38793Attention:
    
    Markus Feyerabend J.P. MORGAN PLCBy:
    
    /s/ H. RUSSELLAddress:
    
    10 Aldermanbury, London, EC2V 7RFUnited KingdomFax:
    
    +44 20 7777 1493Attention:
    
    Heather M. RussellTHE ROYAL BANK OF SCOTLAND PLCBy:
    
    /s/ S. MALONEAddress:
    
    135 Bishopsgate, London, EC2M 3URUnited KingdomFax:
    
    +44 20 7085 5143Attention:
    
    Jens Rüber/Stefanie Nordmann
 123




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##### 



THE AGENTDEUTSCHE BANK LUXEMBOURG S.A.By:
    
    /s/ M. LUTZ F.-J. EWERHARDYAddress:
    
    2, boulevard Konrad AdenauerL-1115 LuxembourgFax:
    
    +352 42122 95771Attention:
    
    International Loans & Agency ServicesFranz-Josef Ewerhardy Karlina BelhosteTHE ORIGINAL LENDERSDEUTSCHE BANK LUXEMBOURG S.A.By:
    
    /s/ I. PALZER           E. STOCKJPMORGAN CHASE BANK, N.A.By:
    
    /s/ H. RUSSELLTHE ROYAL BANK OF SCOTLAND PLC (NIEDERLASSUNG FRANKFURT)By:
    
    /s/ S. SCHEID           S. DÖRINGERBANCO BILBAO VIZCAYA ARGENTARIA, S.A.By:
    
    /s/ M. CASTILLO GUTIERREZ           J.M. DE MIGUEL JIMENEZBANK OF CHINA LIMITEDBy:
    
    /s/ A. BUDZISCH           M. SINN-CONRADBANCO SANTANDER S.A.By:
    
    /s/ A. BUDZISCH           M. SINN-CONRAD
 124




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##### 



THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.By:
    
    /s/ A. BUDZISCH           M. SINN-CONRADBARCLAYS BANK PLCBy:
    
    /s/ M. POPEBNP PARIBAS S.A., NIEDERLASSUNG FRANKFURT AM MAINBy:
    
    /s/ A. BUDZISCH           M. SINN-CONRADCITIGROUP GLOBAL MARKETS DEUTSCHLAND AG & Co. KGaABy:
    
    /s/ S. HAFKECOMMERZBANK AKTIENGESELLSCHAFT FILIALE LUXEMBURGBy:
    
    /s/ M. YILMAZ           C. ZAHNERT-JOSTDEUTSCHE POSTBANK INTERNATIONAL S.A.By:
    
    /s/ A. BUDZISCH           M. SINN-CONRADDZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, FRANKFURTBy:
    
    /s/ G. MEYER           J. PHILIPPILANDESBANK HESSEN-THÜRINGEN GIROZENTRALEBy:
    
    /s/ M. LÄNGLER           J. FREY
 125




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##### 



ING BANK N.V.By:
    
    /s/ A. BUDZISCH           M. SINN-CONRADINTESA SANPAOLO S.P.A.By:
    
    /s/ A. BUDZISCH           M. SINN-CONRADLANDESBANK BADEN-WÜRTTEMBERGBy:
    
    /s/ A. BUDZISCH           M. SINN-CONRADNOMURA INTERNATIONAL PLCBy:
    
    /s/ P. DUFOURNIERNORDEA BANK DANMARK A/SBy:
    
    /s/ A. BUDZISCH           M. SINN-CONRADSOCIÉTÉ GÉNÉRALE S.A.By:
    
    /s/ A. BUDZISCH           M. SINN-CONRADSUMITOMO MITSUI BANKING CORPORATIONBy:
    
    /s/ A. BUDZISCH           M. SINN-CONRADUNICREDIT LUXEMBOURG S.A.By:
    
    /s/ E. MOOS           F. MÖLLER
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##### 



WESTLB AGBy:
    
    /s/ M. LEWALSKI           B. OZKUTANBANK OF AMERICA, N.ABy:
    
    /s/ A. BUDZISCH           M. SINN-CONRADCREDIT SUISSEBy:
    
    /s/ C. KRAMER           R. RUETTIMANNKFW IPEX-BANK GMBHBy:
    
    /s/ S. WABBELS           F. HARTMANNMORGAN STANLEY BANK, N.A.By:
    
    /s/ C. OBRIENUBS AG, LONDON BRANCHBy:
    
    /s/ M. LINFOOT           H. ANAND
 127