##### 



Exhibit 4.4
 27 February 2008
 SAP AG
 DEUTSCHE BANK AG
ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND
BNP PARIBAS S.A.
COMMERZBANK AKTIENGESELLSCHAFT
J.P. MORGAN PLC
SUMITOMO MITSUI BANKING CORPORATION
 DEUTSCHE BANK AG PARIS BRANCH
 DEUTSCHE BANK LUXEMBOURG S.A.
  Certain Financial Institutions
  
 AMENDMENT AND RESTATEMENT AGREEMENT
 relating to the
 5,000,000,000 (subsequently reduced to 2,947,679,513.45)
SYNDICATED MULTICURRENCY TERM LOAN 
FACILITY AGREEMENT
dated 1 October 2007
 (as previously amended and restated pursuant to an
Accession and Restatement Agreement
dated 30 November 2007)




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CONTENTS
 CLAUSE
    
    PAGE1. INTERPRETATION
    
    
    42. AMENDMENT AND RESTATEMENT
    
    
    43. REPRESENTATIONS
    
    
    44. AGENTS CONFIRMATION
    
    
    45. MISCELLANEOUS
    
    
    4SCHEDULE 1 Amended and Restated Facility Agreement
    
    
    5SCHEDULE 2 The Lenders
    
    
    6SCHEDULE 3 Documents received
    
    
    7SIGNATORIES TO THE AMENDMENT AND RESTATEMENT AGREEMENT
    
    
    8




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3 THIS AGREEMENT
 Between
 (1)
    
    SAP AG(the Borrower);(2)
    
    DEUTSCHE BANK AG, ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND, BNP PARIBAS S.A.,
COMMERZBANK AKTIENGESELLSCHAFT, J.P. MORGAN PLCand SUMITOMO MITSUI BANKING CORPORATIONas
mandated lead arrangers (the Mandated Lead Arrangers);(3)
    
    THE FINANCIAL INSTITUTIONSlisted in Schedule 2 (Lenders) as lenders (the Lenders);(4)
    
    DEUTSCHE BANK AG PARIS BRANCHas offer guarantor (the Offer Guarantor); and(5)
    
    DEUTSCHE BANK LUXEMBOURG S.A.as agent of the other Finance Parties (the Agent).
 whereas:
 1.
    
    The Borrower, the Mandated Lead Arrangers, the Lenders, the Offer Guarantor and the Agent
entered into or, as the case may be, acceded to a facility agreement dated 1 October 2007 (as
previously amended and restated pursuant to an Accession and Restatement Agreement dated 30
November 2007, the Facility Agreement) whereby a 5,000,000,000 syndicated multicurrency
term loan facility was made available to the Borrower. As a result of voluntary cancellations
of the Available Facility and voluntary prepayments of Loans, the Total Commitments were
subsequently reduced to 2,947,679,513.45.2.
    
    The Borrower, the Mandated Lead Arrangers, the Lenders, the Offer Guarantor and the Agent
wish to record the arrangements agreed between them to further amend and restate the Facility
Agreement (Vertragsänderung) as set out herein.
 it is agreed




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4 1. INTERPRETATION
  2. AMENDMENT AND RESTATEMENT
 Amended and Restated Facility Agreement
 3. REPRESENTATIONS
  4. AGENTS CONFIRMATION
 Documents received
 5. MISCELLANEOUS
 5.1 Incorporation of terms
 Notices Partial Invalidity Conclusion of this
Agreement Counterparts Governing law Jurisdiction
 5.2 Designation




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SCHEDULE 1
Amended and Restated Facility Agreement
 DATED 27 FEBRUARY 2008
   
 
 SAP AG
 DEUTSCHE BANK AG
ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND
BNP PARIBAS S.A.
COMMERZBANK AKTIENGESELLSCHAFT
J.P. MORGAN PLC
SUMITOMO MITSUI BANKING CORPORATION
 DEUTSCHE BANK LUXEMBOURG S.A.
 
 
 SYNDICATED MULTICURRENCY TERM LOAN
FACILITY AGREEMENT




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CONTENTS
 CLAUSE
    
    PAGE1.   Definitions and interpretation
    
    
    12.   The Facility
    
    
    203.   Purpose
    
    
    204.   Conditions of Utilisation
    
    
    215.   Utilisation
    
    
    246.   Optional Currencies
    
    
    267.   Repayment
    
    
    288.   Prepayment and cancellations
    
    
    289.   Indemnification of Offer Guarantor
    
    
    3310. Counter-indemnity
    
    
    3611. Interest
    
    
    3812. Interest Periods
    
    
    3913. Changes to the calculation of interest
    
    
    4014. Fees
    
    
    4115. Tax gross up and indemnities
    
    
    4316. Increased costs
    
    
    4717. Other indemnities
    
    
    4918. Mitigation by the Lenders
    
    
    5119. Costs and expenses
    
    
    5120. Representations
    
    
    5321. Information undertakings
    
    
    5622. General undertakings
    
    
    6223. Events of Default
    
    
    67




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II CLAUSE
    
    PAGE24. Changes to the Lenders
    
    
    7225. Changes to the Borrower
    
    
    7626. Role of the Agent and the Mandated Lead Arrangers
    
    
    7727. Conduct of business by the Finance Parties
    
    
    8328. Sharing among the Finance Parties
    
    
    8329. Payment mechanics
    
    
    8530. Set-off
    
    
    8731. Notices
    
    
    8832. Calculations and certificates
    
    
    9033. Partial invalidity
    
    
    9034. Remedies and waivers
    
    
    9035. Amendments and waivers
    
    
    9136. Miscellaneous
    
    
    9237. Governing law
    
    
    9438. Jurisdiction
    
    
    94SCHEDULE 1 The Original Lenders
    
    
    95SCHEDULE 2 Conditions Precedent
    
    
    96SCHEDULE 3 Requests
    
    
    97SCHEDULE 4 Mandatory Cost Formulae
    
    
    100SCHEDULE 5 Form of Transfer Certificate
    
    
    103SCHEDULE 6 Existing Security
    
    
    105SCHEDULE 7 Confidentiality Undertaking
    
    
    106SCHEDULE 8 Timetables
    
    
    111SCHEDULE 9 Reservations
    
    
    112SCHEDULE 10 Form of Demand
    
    
    117SIGNATURES
    
    
    118




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1 THIS AGREEMENT
 (1)
    
    SAP AG(the Borrower);(2)
    
    DEUTSCHE BANK AG, ABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLAND, BNP PARIBAS S.A.,
COMMERZBANK AKTIENGESELLSCHAFT, J.P. MORGAN PLCand SUMITOMO MITSUI BANKING CORPORATION(the
Mandated Lead Arrangers);(3)
    
    DEUTSCHE BANK AG PARIS BRANCH(the Offer Guarantor);(4)
    
    THE FINANCIAL INSTITUTIONSlisted in Schedule 1 (The Original Lenders) as lenders (the
Original Lenders); and(5)
    
    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:Accepted Securities means the Target Securities (if applicable, declared in a Result
Notice as having been the subject of acceptance by the holders of Target Securities), which
are to be acquired by the Borrower or Bidco in accordance with the Offer (including by way
of any Supplemental Offer Market Purchase).Acquisition means the acquisition by the Borrower or Bidco of Target Securities pursuant
to:
 (a)
    
    the Offer (including by way of any Supplemental Offer Market Purchase);(b)
    
    any Market Purchases; and/or(c)
    
    any Squeeze Out.
 Acquisition Costs




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2  Acquisition Documents
 (a)
    
    any memorandum of understanding or other agreement entered into in relation
to the Acquisition between the Borrower and/or Bidco and the Target;(b)
    
    each Offer Document on and from the date of its existence; and(c)
    
    any other document amending any of the Offer Documents.
 Additional Cost Rate Mandatory Cost formulae
 Affiliate
 Agents Spot Rate of Exchange
 Agreed Terms
 (a)
    
    closing of the Offer must be subject to prior clearance under all applicable
competition and/or anti-trust laws and regulations of France (and/or, as applicable,
the European Union) and the United States of America;(b)
    
    the Offer is subject to a minimum tender acceptance condition permitting the
Borrower (or Bidco) not to close the Offer if less than 50 per cent. of the voting
rights plus one vote in the Target (on a fully diluted basis) have been tendered; and(c)
    
    the Offer must comply with the agreements set out in the Maximum Price
Letter.
 AMF Autorité des Marchés Financiers
 Authorisation
 Availability Period




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3 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
 Bidco
 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;
  (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




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4 (b)
    
    (in relation to any date for payment or purchase of euro) any TARGET Day.
 Cash Collateral Cash Collateral
Account
 (a)
    
    to ensure that the Cash Collateral is treated as generally eligible financial
collateral (allgemein berücksichtigungsfähige finanzielle Sicherheit) within the
meaning of § 155 No. 1 of the German Solvability Regulation (Solvabilitätsverordnung -
SolvV) in order to achieve a zero risk weighting of the obligations secured by the
Cash Collateral; and(b)
    
    to allow (1) the sums standing to the credit of such accounts to be applied
towards financing the purposes specified in Clause 3.1(a) or (b) (Purpose) and the
repayment of Loans in accordance with Clause 9.8 (Withdrawals from the Cash Collateral
Account) and (2) the release of such sums if and to the extent that the (actual or
contingent) liability of the Borrower under the Instruction Letter Indemnity is
reduced).
 Cash Collateral Documents
 Certain Funds Period
 (a)
    
    the last day of the Availability Period; and(b)
    
    the Offer Guarantee Discharge Date.
 Clean-Up Date
 Clean-Up Period
 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




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5 Original Lenders) and the amount of any other Commitment transferred to it under
this Agreement; and(b)
    
    in relation to any other Lender, the amount in the Base Currency of any
Commitment transferred to it under this Agreement,
  Confidentiality Undertaking Confidentiality Undertaking
 Convertible Bonds
 Default Events of Default
 EURIBOR
 (a)
    
    the applicable Screen Rate; or(b)
    
    (in relation to the first Interest Period of the relevant Loan in the event a
Utilisation Request is delivered to the Agent later than 11.00 a.m. three Business
Days before the proposed Utilisation Date in accordance with Clause 5.1(a) (Delivery
of a Utilisation Request) or 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
 Facility The Facility
 Facility Office




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6  Fee Letter inter alia Fees
 Finance Document
 Finance Party
 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,




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7 Cross Default Cross Default
 First Repayment Date
 French Company
 GAAP GAAP
 Group
 Holding Company
 Information Memorandum
 Instruction Letter
 Instruction Letter Indemnity
 Interest Period Interest Periods Default interest




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8 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 24 (Changes to the Lenders),
  LIBOR
 (a)
    
    the applicable Screen Rate; or(b)
    
    (in relation to the first Interest Period of the relevant Loan in the event a
Utilisation Request is delivered to the Agent later than 11.00 a.m. four Business Days
before the proposed Utilisation Date in accordance with Clause 5.1(a) (Delivery of a
Utilisation Request) or 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
 Major Default Non-payment Other obligations Conduct of Offer Misrepresentation Insolvency Insolvency proceedings Invalidity/Repudiation
 Major Representation Status Binding obligations Non-conflict with other obligations Power and




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9 authority Governing law and enforcement
 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.
 Mandatory Cost Mandatory Cost formulae
 Margin
 (a)
    
    if and for so long as the Total Commitments exceed EUR 2,500,000,000, 0.30
per cent. per annum; and(b)
    
    if the Total Commitments are equal to or fall below EUR 2,500,000,000, 0.25
per cent. per annum,
  Market Purchase
 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




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10 (a)
    
    if the Offer is made by Bidco, at any time after the filing of the related
lettre de depôtwith the AMF, Bidco; and(b)
    
    from time to time, a Subsidiary of the Borrower whose unconsolidated turnover
represents five per cent. or more of the consolidated turnover of the Group, however,
excluding SAP Public Services Inc.
  (i)
    
    the unconsolidated turnover of a Subsidiary of the Borrower
will be determined from its unconsolidated annual financial statements upon
which the latest audited consolidated annual financial statements of the Group
have been based;(ii)
    
    if a Subsidiary of the Borrower becomes a member of the Group
after the date on which the latest audited consolidated annual financial
statements of the Group have been prepared, the unconsolidated turnover of
that Subsidiary will be determined from its latest unconsolidated annual
financial statements; and(iii)
    
    the turnover of the Group will be determined from the latest
audited consolidated financial statements of the Group, adjusted (where
appropriate) to reflect the turnover of any company or business subsequently
acquired or disposed of.
  Maximum Price Letter
 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.




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11 
  Net Proceeds
 Offer
 (a)
    
    any Supplemental Offer;(b)
    
    any Squeeze Out (but only if and to the extent such Squeeze Out is made at
the same price condition as the initial offer and within three months following the
end of the offer acceptance period of the initial offer or the Supplemental Offer, as
the case may be);(c)
    
    any tender offer (or equivalent) required to be made by the Borrower (or
Bidco) in any jurisdiction outside of France with respect to any Target Securities;
and(d)
    
    any other offer reflecting the terms and conditions of the initial offer as
such terms and conditions may be modified or amended in a manner consistent with the
Agreed Terms and otherwise in compliance with the terms of this Agreement (any such
other offer, a Revised Offer).
 Offer Documents
 (a)
    
    the lettre de depôtfiled with the AMF (including the Offer Guarantee);(b)
    
    the draft notes dinformationfiled with the AMF;(c)
    
    the information document to be filed with the AMF no later than the date on
which the Offer opens for acceptance in accordance with article 231-28 of the AMF
general regulations;(d)
    
    the communiqué de pressepublished by the Borrower (or Bidco) in accordance
with article 231-16 III of the AMF general regulations;(e)
    
    the Instruction Letter; and




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12 (f)
    
    any other document setting out details of the Offer and (to the extent such
filing or publication is required by law or regulation in any applicable jurisdiction)
filed with the relevant regulatory authorities or otherwise published in each relevant
jurisdiction outside of France where any tender offer (or equivalent) is required to
be made by the Borrower (or Bidco) with respect to any Target Securities (or, in the
case of any tender offer in the United States of America, with respect to the Target
Securities and any American depositary shares representing Shares).
 Offer Guarantee lettre de depôt
 Offer Guarantee Discharge Date
 (a)
    
    the date of termination, lapse or withdrawal of the Offer in circumstances
where the Borrower or Bidco is not purchasing Target Securities provided thatif on or
prior to such date in respect of the initial Offer the Borrower or the Offer Guarantor
has notified the Agent that the Borrower reserves the right to file and present a
Revised Offer, the reference to the Offer in the first line of this paragraph shall
be replaced by a reference to the Revised Offer; and(b)
    
    the day after the final Settlement Date (being the final Settlement Date in
respect of any Squeeze Out if and to the extent such Squeeze Out is made at the same
price condition as the initial Offer and within three months following the end of the
offer acceptance period of the initial Offer or the Supplemental Offer, as the case
may be),
  Offer Guarantee Liability
 (a)
    
    EUR 4,818,688,133.19 or such lesser amount as notified by the Offer Guarantor
to the Agent upon an update of the respective calculation (provided that any such
notification shall be made promptly upon any such update of such calculation being
made) as being the then current maximum aggregate amount of cash consideration (plus
transfer taxes




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13 and/or brokerage fees incurred by any holder of Target Securities in the course of
the Offer and agreed to be borne by the Company (or Bidco)) payable by the Borrower
(or Bidco) to the holders of Target Securities if all those holders accepted the
Offer (without double counting, but taking into account any potential conversion,
prior to the closing of the Offer, of the Convertible Bonds and any potential
exercise, prior to the closing of the Offer, of the Warrants or stock options
granted by the Target) less(b)
    
    the aggregate amount of Offer Payments made to the holders of Target
Securities by or on behalf of the Borrower (or Bidco) at that time, provided thatany
payment to the Settlement Account shall be deemed to constitute an Offer Payment made
to such holders in an amount corresponding to the amount so paid less(c)
    
    the amount of any Cash Collateral provided pursuant to the terms of this
Agreement and less(d)
    
    any other amount as may be agreed among the Borrower and the Offer Guarantor
and notified by the Offer Guarantor to the Agent (provided that any such notification
shall be made promptly upon any such agreement taking effect).
 Offer Loan Purpose
 Offer Payment
 Optional Currency Conditions relating to Optional Currencies
 Original Financial Statements
 Party
 Qualifying Lender Definitions
 Quotation Day
 (a)
    
    (for the Base Currency) two TARGET Days before the first day of that period;
or




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14 (b)
    
    (for any Optional Currency) two Business Days (provided that for the purposes
of this paragraph (b) the definition of Business Day shall be deemed to include a
reference to London) before the first day of that period,
 Delivery of a Utilisation Request
 Reference Banks
 Relevant Proportion provided that Illegality Change of
control Automatic cancellation Right of prepayment and cancellation in
relation to a single Lender
 Repeating Representations Status Governing law and enforcement No default Financial Statements No proceedings pending or threatened Acquisition
 Reservations Reservations
 Result Notice avis de résultat définitif




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15  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
 Selection Notice Requests Interest Periods
 Settlement Account
 (a)
    
    the account of Euronext Paris by NYSE Euronext held with the Banque de France
for purposes of the Offer into which each relevant Offer Payment is to be made; and/or(b)
    
    any other account maintained outside the United States of America of any
sub-paying agent or any paying agent appointed (in each case with the prior consent of
the Offer Guarantor) by the Borrower or Bidco for purposes of receiving and, if
applicable, onward transmission to an account (which, for the avoidance of doubt, may
be maintained in the United States of America) of any sub-paying agent or any paying
agent appointed (in each case with the prior consent of the Offer Guarantor) by the
Borrower or Bidco, of any relevant Offer Payment.
 Settlement Date date de
règlement-livraison




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16 Specified Time Timetables
 Squeeze Out offre publique de retrait retrait obligatoire
 Subsidiary Aktiengesetz
 Substantial Measures
 Supplemental Offer
 Supplemental Offer Market Purchase
 Syndication Date
 Target
 TARGET
 TARGET Day
 Target Disposal Event
 Target Group




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17 Target Securities
 (i)
    
    all shares which were admitted to trading on Euronext Paris by NYSE Euronext
until 18 February 2008 (the Shares), whether outstanding on 1 October 2007 or issued
thereafter as a result of the exercise, prior to the closing of the Offer, of the
Convertible Bonds, the Warrants or stock options granted by the Target;(ii)
    
    all the American depositary shares (each representing 1 Share), which were
admitted to trading on the NASDAQ National Market until 19 February 2008;(iii)
    
    all the Convertible Bonds; and(iv)
    
    all Warrants.
 Tax
 Termination Date
 Total Commitments
 Transaction Document
 Transfer Certificate Form of Transfer Certificate
 Transfer Date
 (a)
    
    the proposed Transfer Date specified in the Transfer Certificate; and(b)
    
    the date on which the Agent executes the Transfer Certificate.
 Unpaid Sum
 U.S. Company
 Utilisation




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18 Utilisation Date
 Utilisation Request Requests
 VAT Umsatzsteuer
 Warrants bons de souscription dactions
 1.2
    
    Construction
 (a)
    
    Unless a contrary indication appears any reference in this Agreement to:
 (i)
    
    the Agent, any Mandated Lead Arranger, the Offer
Guarantor, 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)
    
    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);(iv)
    
    a company or corporation includes a partnership;(v)
    
    a Finance Document or any other agreement or instrument is
a reference to that Finance Document or other agreement or instrument as
amended;(vi)
    
    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;(vii)
    
    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;




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19 (viii)
    
    a person includes any individual, firm, company, corporation, government,
state or agency of a state or any association, trust or partnership (whether
or not having separate legal personality) or two or more of the foregoing;(ix)
    
    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);(x)
    
    gross negligence means grobe Fahrlässigkeitand wilful
misconduct means Vorsatz;(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.(e)
    
    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.
 1.3
    
    Currency Symbols and DefinitionsEUR,  and euro means the single currency of certain member states of the European
Union participating in the third stage of the Economic and Monetary Union and $, USD
and Dollars denote lawful currency of the United States of America.




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20 
 SECTION 2
THE FACILITY
 2.
    
    THE FACILITY2.1
    
    The FacilitySubject to the terms of this Agreement, the Lenders make available to the Borrower a
multicurrency term loan facility in an aggregate amount equal to the Total Commitments.2.2
    
    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.(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 in or towards:
 (a)
    
    financing of any Offer Payment;(b)
    
    making of any Indemnity Payment to the Offer Guarantor in accordance with
Clause 9.2 (Payment under the Instruction Letter Indemnity);(c)
    
    making of any payment to the Lenders in accordance with Clause 10.1(a)
(Counter-indemnity by the Borrower);(d)
    
    (only if the Offer Guarantee remains outstanding on the last day of the
Availability Period) Cash Collateralising the (actual or contingent) liability of the
Borrower under the Instruction Letter Indemnity in accordance with Clause 9.7
(Cash-collateralisation of Instruction Letter Indemnity);




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21 (e)
    
    refinancing of Financial Indebtedness incurred for, or cash liquidity applied
towards, the financing of any Supplemental Offer Market Purchase;(f)
    
    financing (or refinancing of Financial Indebtedness incurred for, or cash
liquidity applied towards, the financing) of any Market Purchase;(g)
    
    financing of amounts payable to holders of shares or securities giving access
to the share capital or voting rights in the Target in the course of any Squeeze Out
where any such payment does not constitute an Offer Payment; and/or(h)
    
    financing of Acquisition Costs,
 in the case of paragraphs (a), (e), (f), (g) and (h) either directly or indirectly by way
of intercompany loan or equity injection to Bidco or (but only in relation to Market
Purchases in respect of the Convertible Bond) Target.3.2
    
    LimitationThe Borrower will not be entitled to request a Utilisation prior to the Offer Guarantee
Discharge Date if, after the application of the proceeds of the Utilisation, the Available
Facility would be less than the Offer Guarantee Liability.3.3
    
    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 Agent confirms to the Borrower, the Offer Guarantor and the Lenders that it has
received each of the documents and other evidence listed in Schedule 2 (Conditions
precedent) and that all such documents and other evidence are in form and substance
satisfactory to it.4.2
    
    Further conditions precedentSubject to Clause 4.3 (Certain Funds), 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:
 (a)
    
    no Default is continuing or would result from the proposed Loan; and(b)
    
    the Repeating Representations and (if applicable) the confirmation pursuant
to Clause 5.2(a)(iii)(4) (Completion of a Utilisation Request) to be made by the
Borrower are true in all material respects.




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##### 



22 
 4.3
    
    Certain FundsEach Finance Party agrees that during the Certain Funds Period, the Finance Parties shall
not:
 (a)
    
    have the right to prevent, limit or refuse the making of any Offer Loan,
whether by cancellation, rescission or termination of the Facility or otherwise
(including by invoking any conditions set out in Clause 4.2 (Further conditions
precedent); or(b)
    
    make or enforce any claims they may have under the Finance Documents if the
effect of such claim or enforcement would prevent or limit the making of any Offer
Loan; or(c)
    
    otherwise exercise any right of set-off, counterclaim or similar right or
remedy if to do so would prevent or limit the making of any Offer Loan; or(d)
    
    cancel or declare the Facility due and payable or payable on demand,
 Illegality Initial conditions precedent
 (i)
    
    immediately upon the expiry of the Certain Funds Period all such rights,
remedies and entitlements shall be available to the Lenders notwithstanding that they
may not have been used or been available for use during the Certain Funds Period; and(ii)
    
    the Finance Parties may not cancel the Facility (without prejudice to their
rights to decline to provide any Loan as provided above (subject to the provisions of
Clause 9.3 (Counter-guarantee by Lenders))) until after the Offer Guarantee Discharge
Date unless the Offer Guarantor has not complied with Clause 22.8(i) (Conduct of
Offer).
 4.4
    
    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 U.S. Dollars or any other currency approved by the Agent
(acting on the instruction of all of the Lenders) on or prior to




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23 receipt by the Agent of the relevant Utilisation Request for that Loan.
 (b)
    
    If the Agent has received 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 whether or not the Lenders have granted their approval.
 4.5
    
    Maximum number of Loans
 (a)
    
    The Borrower may not deliver a Utilisation Request for a Loan other than an
Offer Loan if, as a result of the proposed Utilisation, ten or more Loans (other than
Offer 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 4.5.




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24 
 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:
 (a)
    
    (in relation to an Offer Loan drawn for purposes of financing of any Offer
Payment and provided that the Agent receives a respective advice by telephone prior to
or concurrently with the delivery of the Utilisation Request) 9.00 a.m. on the
proposed Utilisation Date;(b)
    
    (in relation to a Loan drawn for purposes of financing (but not for purposes
of refinancing) of any Market Purchase) 9.00 a.m. on the relevant Quotation Day; or(c)
    
    (in relation to any other Loan) 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)
    
    in the case of:
 (1)
    
    any Loan drawn on or prior to the final
Settlement Date in respect of the Offer, it specifies the purpose of
such Loan; and(2)
    
    an Offer Loan drawn for purposes of
financing of any Offer Payment, it specifies that such Loan will be
credited directly to the Settlement Account; or(3)
    
    an Offer Loan drawn for a purpose specified
in Clause 3.1(b), (c) or (d) (Purpose), it specifies that such Loan
will be credited directly to an account maintained outside the United
States of America specified by the Offer Guarantor, the Agent or to
the Cash Collateral Account, as applicable; or




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##### 



25 (4)
    
    a Loan drawn for a purpose specified in
Clause 3.1(e) (Purpose), it confirms that the amount of such Loan
does not exceed an amount which is equal to the aggregate amount paid
by the Borrower (or Bidco) to holders of Target Securities acquired
by way of Supplemental Offer Market Purchases at the time of delivery
of the relevant Utilisation Request lessthat part (if any) of such
amount which has been previously financed either by way of (an) Offer
Loan(s) drawn for purposes of financing of (an) Offer Payment(s) or
by way of any other Loan(s) previously drawn for the purpose
specified in Clause 3.1(e) (Purpose); and/or (as applicable)(5)
    
    a Loan drawn for a purpose specified in
Clause 3.1(e), (f), (g) or (h) (Purpose), it specifies that such Loan
will be credited directly to an account maintained outside the United
States of America; and
 (iv)
    
    the proposed Interest Period complies with Clause 12
(Interest Periods).
 (b)
    
    Only one Loan may be requested in each Utilisation Request.(c)
    
    In the event a Loan is drawn for the purpose specified in Clause 3.1(e)
(Purpose) the Agent shall promptly notify the Offer Guarantor thereof. Promptly upon
receipt of such notification, the Offer Guarantor shall confirm to the Agent the then
current aggregate amount paid by the Borrower (or Bidco) to holders of Target
Securities acquired by way of Supplemental Offer Market Purchases.
 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 50,000,000 or, if less, the Available Facility; or(ii)
    
    if the currency selected is an Optional Currency, the amount
equivalent of a Base Currency Amount as permitted by paragraph (i); and(iii)
    
    in any event such that its Base Currency Amount is less than
or equal to the Available Facility.




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##### 



26 
 5.4
    
    Lenders participation
 (a)
    
    If the conditions set out in this Agreement have been met, each Lender shall
make its participation in each Loan available by the Utilisation Date through its
Facility Office.(b)
    
    The amount of each Lenders participation in each Loan will be equal to the
proportion borne by its relevant Available Commitment to the relevant Available
Facility immediately prior to making the Loan.(c)
    
    The Agent shall determine the Base Currency Amount of each Loan which is to
be made in an Optional Currency and shall notify each Lender of the amount, currency
and the Base Currency Amount of each Loan and the amount of its participation in that
Loan:
 (i)
    
    (in case the relevant Utilisation Request is delivered later
than 2.00 p.m. on the third Business Day before the proposed Utilisation Date)
as soon as reasonably practicable following receipt of the relevant
Utilisation Request; or(ii)
    
    (in each other 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 (or, in the event the relevant Lender has
then not yet been notified pursuant to Clause 5.4(c) (Lenders participation), as soon as
reasonably practicable following receipt of such notification):
 (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,




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##### 



27  6.3
    
    Rebasing
 (a)
    
    If a Loan is denominated in an Optional Currency, the Agent shall on the
Quotation Day for each Interest Period of that Loan (other than the first Interest
Period) calculate the amount of the relevant Loan in the Optional Currency for that
Interest Period (by calculating the amount of Optional Currency equal to the Base
Currency Amount of that Loan at the Agents Spot Rate of Exchange) and (subject to
paragraph (b) below) if the amount calculated is less than the existing amount of that
Loan in the Optional Currency during the then current Interest Period, promptly notify
the Borrower and the Borrower shall pay, on the last day of the that Interest Period,
an amount equal to the difference.(b)
    
    If the calculation made by the Agent pursuant to paragraph (a) above shows
that the amount of the relevant Loan in the Optional Currency for the relevant
Interest Period has decreased by less than 5% since it was borrowed or (if later) the
most recent adjustment made under paragraph (a) above, no notification shall be made
by the Agent and no payment shall be required under paragraph (a) above.
 6.4
    
    Agents calculations
 (a)
    
    All calculations made by the Agent pursuant to this Clause 6 will take into
account any repayment or prepayment of Loans to be made on the last day of the then
current Interest Period.(b)
    
    Each Lenders participation in a Loan will, subject to paragraph (a) above,
be determined in accordance with paragraph (b) of Clause 5.4 (Lenders participation).




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##### 



28 
 SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
 7.
    
    REPAYMENT7.1
    
    Repayment of Loans
 (a)
    
    The Borrower shall ensure that as from the First Repayment Date the aggregate
amount of all Loans outstanding does not exceed the amount which is equal to
EUR 2,500,000,000 less the amount of any mandatory prepayment made pursuant to Clause
8.3 (Mandatory prepayment  Target Disposal Event).(b)
    
    The Borrower shall repay any remaining amount outstanding under a Loan on the
Termination Date.(c)
    
    Any amount of a Loan that is repaid or prepaid may not be reborrowed.
 8.
    
    PREPAYMENT AND CANCELLATIONS8.1
    
    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,
 (i)
    
    the Commitment of that Lender will be immediately cancelled;(ii)
    
    the Borrower shall fully Cash Collateralise, and the Offer
Guarantor shall accept such Cash Collateralisation of, any (actual or
contingent) liability of the Borrower under the Instruction Letter Indemnity
then outstanding in an amount equal to that Lenders Relevant Proportion
(disregarding any cancellation pursuant to sub-paragraph (i)) of any Offer
Guarantee Liability then outstanding (in which case Clauses 9.7
(Cash-collateralisation of Instruction Letter Indemnity) (other than Clause
9.7(b)) and 9.8 (Withdrawals from the Cash Collateral Account) shall apply
mutatis mutandis); 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




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##### 



29 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 then 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 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. In the event of any cancellation under this Clause
8.2(b), the Borrower shall fully Cash Collateralise, and the Offer Guarantor shall
accept such Cash Collateralisation of, any (actual or contingent) liability of the
Borrower under the Instruction Letter Indemnity then outstanding in an aggregate
amount equal to the relevant Lenders or Lenders Relevant Proportion(s) (disregarding
any such cancellation) of any Offer Guarantee Liability then outstanding (in which
case Clauses 9.7 (Cash-collateralisation of Instruction Letter Indemnity) (other than
Clause 9.7(b)) and 9.8 (Withdrawals from the Cash Collateral Account) shall apply
mutatis mutandis).




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30 In this Clause 8.2 (Change of Control) a group of persons acting in concert is to
be construed as gemeinsam handelnde Personen as defined in Section 2 paragraph 5 of
the German Wertpapiererwerbs- und Übernahmegesetz.
 8.3
    
    Mandatory prepayment  Target Disposal Event
 (a)
    
    The Borrower shall, as soon as reasonably practicable apply or procure the
application of the Net Proceeds resulting or arising from any Target Disposal Event in
prepayment of the Facility.(b)
    
    Mandatory prepayments under this Clause 8.3 shall be applied against
prepayment of Loans in such order and proportions as the Borrower may select.(c)
    
    The Borrower shall notify the Agent which Utilisations are to be prepaid in
compliance with this Clause 8.3 no less than three Business Days before the date of
such prepayment.
 8.4
    
    Voluntary cancellation
 (a)
    
    Subject to paragraph (b), the Borrower may, if it gives the Agent prior
written notice (unless otherwise agreed by the Majority Lenders, such notice to be
received by the Agent no later than on the Business Day immediately prior to the day
on which such cancellation is to take effect), 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.(b)
    
    Notwithstanding paragraph (a), prior to the Offer Guarantee Discharge Date no
cancellation of the Available Facility shall be permitted if:
 (i)
    
    after giving effect to such cancellation, the Available
Facility would be less than the Offer Guarantee Liability then outstanding; or(ii)
    
    any Loan is then outstanding.
 8.5
    
    Automatic cancellation
 (a)
    
    The unutilised Commitments of each Lender will be automatically cancelled at
the end of the Availability Period.(b)
    
    The unutilised Commitments of each Lender will be automatically cancelled at
close of business on the earlier of the date (if any) on which the Offer lapses or
terminates or is withdrawn by the Borrower (or Bidco) in each case in circumstances
where the Borrower (or Bidco) is not acquiring Target Securities, provided thatif on
or prior to such date in respect of the




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##### 



31 initial Offer the Borrower or the Offer Guarantor has notified the Agent that the
Borrower reserves the right to file and present a Revised Offer, the reference to the
Offer in the third line of this paragraph shall be replaced by a reference to the
Revised Offer and further provided thatin no circumstances will the unutilised
Commitments be automatically cancelled while the Offer Guarantor has any actual or
contingent liability under the Offer Guarantee.
 8.6
    
    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).8.7
    
    Right of 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 15.2 (Tax gross-up);(ii)
    
    any Lender claims indemnification from the Borrower under
Clause 15.3 (Tax indemnity) or Clause 16.1 (Increased costs); or(iii)
    
    any Lender notifies the Agent of its Additional Cost Rate
under paragraph 3 of Schedule 4 (Mandatory Cost formulae),
  (b)
    
    On receipt of a notice referred to in paragraph (a) above:
 (i)
    
    the Commitment of that Lender shall immediately be reduced to
zero; and(ii)
    
    the Borrower shall fully Cash Collateralise, and the Offer
Guarantor shall accept such Cash Collateralisation of, any (actual or
contingent) liability of the Borrower under the Instruction Letter Indemnity
then outstanding in an amount equal to that Lenders Relevant Proportion
(disregarding any cancellation pursuant to sub-paragraph (i)) of any Offer
Guarantee Liability then outstanding (in which case Clauses 9.7 (Cash-




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##### 



32 collateralisation of Instruction Letter Indemnity) (other than Clause
9.7(b)) and 9.8 (Withdrawals from the Cash Collateral Account) shall apply
mutatis mutandis).
 (c)
    
    On the last day of each Interest Period which ends after the Borrower has
given notice 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.
 8.8
    
    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)
    
    Any part of the Facility which is prepaid may not be reborrowed.(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)
    
    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.




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##### 



33 
 SECTION 5
OFFER GUARANTEE
 9.
    
    INDEMNIFICATION OF OFFER GUARANTOR9.1
    
    Notification of claim under Offer GuaranteeIf a claim (an Offer Guarantee Claim) is made on the Offer Guarantor under the Offer
Guarantee in respect of the Borrowers (or Bidcos) obligation to pay the cash
consideration payable pursuant to the Offer, the Offer Guarantor shall:
 (a)
    
    promptly notify the Agent and the Borrower of:
 (i)
    
    the amount of the Offer Guarantee Claim; and(ii)
    
    the latest date by which payment is required to be made in
respect of the relevant Offer Guarantee Claim,
  (b)
    
    make a demand on the Borrower under the Instruction Letter Indemnity for the
full amount claimed under the Offer Guarantee Claim.
 9.2
    
    Payment under the Instruction Letter IndemnityThe Borrower undertakes, on account of its obligations under the Instruction Letter
Indemnity and subject to the conditions set forth therein, to make payment forthwith on
receipt of any demand made on it under the Instruction Letter Indemnity (an Indemnity
Payment) to the Agent on behalf of the Offer Guarantor which payment shall on receipt by
the Agent discharge the obligations of the Borrower under the Instruction Letter Indemnity
pro tanto.9.3
    
    Counter-guarantee by Lenders
 (a)
    
    If the Offer Guarantor does not receive any amount due from the Borrower in
respect of an Indemnity Payment under Clause 9.2 (Payment under the Instruction Letter
Indemnity) on the relevant due date (whether by way of direct payment by the Borrower
or by way of application of funds by the Agent in accordance with Clause 9.8
(Withdrawals from Cash Collateral Account)), the Offer Guarantor shall promptly notify
the Agent which shall promptly make demand on the Lenders specifying, for the purpose
of paragraph (b), the unpaid amount (the Indemnity Shortfall).(b)
    
    Each Lender (on a several basis), by way of counter-guarantee agrees to pay
to the Agent for the Offer Guarantor on demand from the Agent an amount equal to its
Relevant Proportion of each Indemnity Shortfall. Notwithstanding any other term of
this Agreement, a Lender shall only be




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##### 



34 obliged to make any payment under this Clause 9.3(b) or participate in any Loan to
the extent that, after the making of such payment or such Loan, the aggregate
outstanding amount of its participations in Loans plus the aggregate of its payments
not reimbursed by the Borrower which have been made under this Clause 9.3(b), does
not exceed its Commitment.(c)
    
    The obligations of the Lenders under this Clause 9.3 are unconditional
(provided the Offer Guarantor has complied with Clause 22.8(i) (Conduct of Offer)), in
addition to and independent from their other obligations under this Agreement, such
that if any part of this Agreement (other than this Clause 9.3) is held to be invalid,
non-binding or unenforceable against the Lenders, the obligations of the Lenders to
the Offer Guarantor pursuant to this Clause 9.3 shall remain valid, binding and
enforceable by the Offer Guarantor against the Lenders, and are not subject to the
conditions set out in Clause 4 (Conditions of Utilisation).(d)
    
    The Lenders will not be required to make any payment under this Clause 9.3 if
the Offer Guarantor does not comply with Clause 22.8(i) (Conduct of Offer).(e)
    
    Notwithstanding any other provision of this Clause 9.3, a counter-guarantee
obligation of a Lender hereunder shall be reduced pro tantoin an amount corresponding
to such Lenders participation in a Loan upon disbursement of such Loan to the
Settlement Account.
 9.4
    
    Reimbursement by Offer GuarantorIf a Lender makes a payment corresponding to its Relevant Proportion of an Indemnity
Shortfall in accordance with Clause 9.3(b) (Counter-guarantee by Lenders) and:
 (a)
    
    the Offer Guarantor does not pay the Offer Guarantee Claim in an amount
corresponding to that Indemnity Shortfall; or(b)
    
    the Offer Guarantor recovers any amount of, or in respect of, that Offer
Guarantee Claim (otherwise than from the Lenders); or(c)
    
    the Borrower (or Bidco) is not obliged (as a result of the conditions in the
Instruction Letter Indemnity) to reimburse and indemnify (and does not reimburse and
indemnify on demand) that Offer Guarantee Claim,
  (i)
    
    pay to the Agent such amounts for distribution to the Lenders pro ratato the
amounts paid by the Lenders under Clause 9.3(b) (Counter-guarantee by Lenders) in
relation to that Offer Guarantee Claim; and




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##### 



35 (ii)
    
    (in the case of paragraph (c)) indemnify that Lender from and against any
costs, losses, damages and expenses incurred by it in connection with the relevant
Offer Guarantee Claim.
 9.5
    
    AssignmentIf a Lender makes a payment under Clause 9.3(b) (Counter-guarantee by Lenders) with respect
to a payment made by the Offer Guarantor pursuant to an Offer Guarantee Claim, the Offer
Guarantor will assign to that Lender the claim against the Borrower under the Instruction
Letter Indemnity to which that payment is allocated and the Borrower shall be liable to
that Lender in an amount equal to that payment.9.6
    
    Immediate recourseEach Lender waives any right it may have of first requiring the Offer Guarantor (or any
trustee or agent on its behalf) to proceed against or enforce any other rights or security
or claim payment from any person before claiming from that Lender under Clause 9.3
(Counter-guarantee by Lenders).9.7
    
    Cash-collateralisation of Instruction Letter Indemnity
 (a)
    
    The Borrower shall fully Cash Collateralise, and the Offer Guarantor shall
accept such Cash Collateralisation of, any (actual or contingent) liability of the
Borrower under the Instruction Letter Indemnity which remains outstanding at the end
of the Availability Period.(b)
    
    For the purposes of paragraph (a) the Borrower may, on and after the fifth
Business Day before the end of the Availability Period utilise the Facility in an
amount up to the Offer Guarantee Liability. Subject to compliance by the Offer
Guarantor with Clause 22.8(i) (Conduct of Offer) and the Loan being requested in
accordance with Clause 5 (Utilisation) and not resulting in any Lenders participation
in Loans exceeding its Commitment, the obligations of the Lenders to provide such Loan
are unconditional and are not subject to the conditions set out in Clause 4
(Conditions of Utilisation).(c)
    
    The Borrower and the Offer Guarantor irrevocably authorise the Agent to make
withdrawals from the Cash Collateral Account in accordance with Clause 9.8
(Withdrawals from the Cash Collateral Account).(d)
    
    The Agent shall (and the Borrower permits and authorises the Agent to)
disclose to the other Finance Parties any relevant details in relation to amounts paid
into or out of the Cash Collateral Account, on request by any Finance Party from time
to time.
 9.8
    
    Withdrawals from the Cash Collateral Account
 (a)
    
    Prior to the Offer Guarantee Discharge Date, any balance standing to the
credit of the Cash Collateral Account shall only be applied in or towards




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36 the making of any Offer Payment on behalf of the Borrower or Bidco as provided herein
and/or in payment of any Indemnity Payment.(b)
    
    On the Offer Guarantee Discharge Date any balance remaining in the Cash
Collateral Account shall be applied in whole or in part on the dates requested by the
Borrower (and in any event within 30 days after the Offer Guarantee Discharge Date) in
or towards prepayment of the Facility.(c)
    
    The Offer Guarantor will notify the Agent promptly after the Offer Guarantee
Discharge Date occurs.
 10.
    
    COUNTER-INDEMNITY10.1
    
    Counter-indemnity by the BorrowerThe Borrower irrevocably and unconditionally:
 (a)
    
    agrees to pay to the Agent for the Lenders on first written demand from the
Agent an amount in the currency specified in a notice in the form of Schedule 10 (Form
of Demand) in an amount equal to each amount due and unpaid by the Borrower under
Clause 9.2 (Payment under the Instruction Letter Indemnity) and paid by the Lenders
under Clause 9.3 (Counter-guarantee by Lenders);(b)
    
    undertakes to indemnify and hold harmless the Agent and each Lender from and
against any loss or liability which that Finance Party may incur or sustain by reason
of or arising in any way whatsoever in connection therewith;(c)
    
    authorises and directs each Lender to pay any amount claimed under and in
accordance with Clause 9.3 (Counter-guarantee by Lenders) without requiring proof or
the agreement of the Borrower that the amount so demanded or paid is or was due and
notwithstanding that the Borrower may dispute the validity of any such request, demand
or payment; and(d)
    
    agrees that no Lender need have regard to the sufficiency, accuracy or
genuineness of any demand or claim made under or in connection with Clause 9.3
(Counter-guarantee by Lenders) and shall not be obliged to enquire as to any such
matters and may assume that any such demand or claim which appears on its face to be
in order is correct and properly made.
 10.2
    
    Rights of contribution and subrogationUntil the Facility has been fully and irrevocably discharged and all amounts which are or
may become payable by the Borrower under or in connection with the Finance Documents have
been irrevocably paid in full, the Borrower shall not, by virtue of any payment made by it
under or in connection with or




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##### 



37 referable to this Clause 10 or otherwise, exercise any right of contribution or rights
resulting from a subrogation or similar right against a Finance Party.10.3
    
    Waiver of defencesThe Borrower agrees that its obligations under this Clause 10 shall not be affected by any
act, omission, matter or thing which but for this provision might operate to release or
otherwise exonerate it from its obligations under this Agreement in whole or in part.10.4
    
    Continuing indemnityThe indemnity given under this Clause 10 shall be a continuing indemnity, shall extend to
the ultimate balance of the obligations and liabilities of the Borrower under this Clause
10 and shall continue in full force notwithstanding any intermediate payment in whole or in
part of such obligations or liabilities.10.5
    
    Additional securityThe obligations of the Borrower under this Clause 10 shall be in addition to and shall not
be in any way prejudiced by any collateral or other security now or hereafter held by any
Finance Party as security or any lien to which that Finance Party may be entitled.10.6
    
    Preservation of rightsNo invalidity or unenforceability of all or any part of this Clause 10 shall affect any
rights of indemnity or otherwise which any Finance Party would or may have in the absence
of or in addition to this Clause 10.




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##### 



38 
 SECTION 6
COSTS OF UTILISATION
 11.
    
    INTEREST11.1
    
    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.
 11.2
    
    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).11.3
    
    Default interest
 (a)
    
    If the Borrower fails to pay any amount payable by it under a Finance
Document (other than interest) on its due date, interest shall accrue on the Unpaid
Sum from the due date up to the date of actual payment (both before and after
judgment) at a rate which, subject to paragraph (b) below, is the sum of 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)
    
    If any overdue amount consists of all or part of a Loan which became due on a
day which was not the last day of an Interest Period relating to that Loan:
 (i)
    
    the first Interest Period for that overdue amount shall have
a duration equal to the unexpired portion of the current Interest Period
relating to that Loan; and(ii)
    
    the rate of interest applying to the overdue amount during
that first Interest Period shall be one per cent higher than the rate which
would have applied if the overdue amount had not become due.




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##### 



39 (c)
    
    Any amounts accruing under this Clause 11.3 shall be payable by the Borrower
following request by the Agent on the last day of the respective Interest Period
selected by the Agent.(d)
    
    This Clause 11.3 shall not limit or affect the right of any Finance Party to
demand compensation for damages exceeding the default interest payable hereunder.
 11.4
    
    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.12.
    
    INTEREST PERIODS12.1
    
    Selection of Interest Periods
 (a)
    
    The Borrower may select an Interest Period for a Loan in the Utilisation
Request for that Loan or (if the Loan has already been made) in a Selection Notice.(b)
    
    Each Selection Notice for a Loan is irrevocable and must be delivered to the
Agent by the Borrower not later than the Specified Time.(c)
    
    If the Borrower fails to deliver a Selection Notice to the Agent in
accordance with paragraph (b), the relevant Interest Period will be one month.(d)
    
    Subject to this Clause 12, 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).(e)
    
    An Interest Period for a Loan shall not extend beyond the Termination Date.(f)
    
    Each Interest Period for a Loan shall start on the Utilisation Date or (if a
Loan has already been made) on the last day of its preceding Interest Period.(g)
    
    Until the Syndication Date, each Interest Period shall be for a period of one
week or one month unless the Mandated Lead Arrangers and the Borrower agree otherwise.
 12.2
    
    Notification of Interest PeriodsThe Agent will promptly notify the Borrower and the Lenders of the duration of each
Interest Period relating to each Loan promptly after ascertaining the same.




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##### 



40 12.3
    
    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).13.
    
    CHANGES TO THE CALCULATION OF INTEREST13.1
    
    Absence of quotationsSubject to Clause 13.2 (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.13.2
    
    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.




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##### 



41 
 13.3
    
    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.
 13.4
    
    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.
 14.
    
    FEES14.1
    
    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 0.075 per cent. per annumon the aggregate
of the daily amount of the Available Commitments less the aggregate of the daily
amount of the Offer Guarantee Liability.(b)
    
    The accrued commitment fee is payable on the last day of each successive
period of three Months which starts on the date of this Agreement and ends on the last
day of the Availability Period and, if cancelled in full, on the cancelled amount of
the relevant Lenders Commitment at the time the cancellation is effective.
 14.2
    
    Counter-guarantee fee
 (a)
    
    The Borrower shall pay to the Agent (for the account of each Lender) a fee in
the Base Currency computed (subject to paragraph (b)) at the rate of 0.25 per cent.
per annumon the aggregate of the daily amount of the Offer Guarantee Liability (to be
distributed by the Agent to the Lenders in accordance with each Lenders Relevant
Proportion of the Offer Guarantee Liability).(b)
    
    The accrued counter-guarantee fee is payable on the last day of each
successive period of three Months which begins on the date on which the lettre de
depôtin relation to the Offer is filed with the AMF and ends on the earlier of the
Offer Guarantee Discharge Date and the date on which the




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##### 



42 Offer Guarantee Liability is otherwise permanently reduced to zero, and on the
earlier of such dates.
 14.3
    
    Upfront and fronting feesThe Borrower shall pay to the Mandated Lead Arrangers, the Original Lenders and the Offer
Guarantor, respectively, upfront and fronting fees in the amount and at the times agreed in
a Fee Letter.14.4
    
    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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##### 



43 
 SECTION 7
ADDITIONAL PAYMENT OBLIGATIONS
 15.
    
    TAX GROSS UP AND INDEMNITIES15.1
    
    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
 Tax Deduction
 Tax Payment Tax gross-up Tax indemnity
 Treaty Lender
 (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 the
jurisdiction of incorporation of the Borrower to receive payments of interest from the
Borrower without a Tax Deduction (subject to the fulfilment of any necessary
procedural formalities); and




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##### 



44 (c)
    
    does not carry on a business in the jurisdiction of incorporation of the
Borrower through a permanent establishment or a permanent representative with which
the Lenders participation in the Loan is effectively connected; and(d)
    
    is lending through a Facility Office in the Treaty State.
 determines determined
 15.2
    
    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 setting out the reasons for such payment
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, or application of) any law, or any
published practice or concession of any relevant taxing authority; or




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45 (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.
 15.3
    
    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,
  (ii)
    
    to the extent a loss, liability or cost:




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##### 



46 
 (1)
    
    is compensated for by an increased payment
under Clause 15.2 (Tax gross-up); or(2)
    
    would have been compensated for by an
increased payment under Clause 15.2 (Tax gross-up) but was not so
compensated solely because one of the exclusions in paragraph (d) of
Clause 15.2 (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 15.3, notify the Agent.
 15.4
    
    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,
  15.5
    
    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.15.6
    
    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 sec. 14, 14a German




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##### 



47 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 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.
 16.
    
    INCREASED COSTS16.1
    
    Increased costs
 (a)
    
    Subject to Clause 16.3 (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;




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##### 



48 (ii)
    
    an additional or increased cost; or(iii)
    
    a reduction of any amount due and payable under any Finance
Document,
  16.2
    
    Increased cost claims
 (a)
    
    A Finance Party intending to make a claim pursuant to Clause 16.1 (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 and setting out the
calculation of such Increased Costs in reasonable detail.
 16.3
    
    Exceptions
 (a)
    
    Clause 16.1 (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 15.3 (Tax indemnity) (or would have
been compensated for under Clause 15.3 (Tax indemnity) but was not so
compensated solely because any of the exclusions in paragraph (b) of
Clause 15.3 (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).




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##### 



49 
 (b)
    
    In this Clause 16.3, a reference to a Tax Deduction has the same meaning
given to the term in Clause 15.1 (Definitions).
 17.
    
    OTHER INDEMNITIES17.1
    
    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,
  (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.
 17.2
    
    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 28 (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




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##### 



50 (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.
 17.3
    
    Acquisition LiabilityThe Borrower will indemnify and hold harmless each Finance Party and each of their
respective directors, officers, employees, agents and representatives (each being an
Indemnified Person) from and against any and all claims, damages, losses, liabilities and
documented costs and other expenses (including the properly incurred and documented fees of
legal counsel for such Indemnified Person (all together Losses) which have been incurred
by or awarded against any Indemnified Person, in each case arising out of or in connection
with any claim, investigation, litigation or proceeding (or the preparation of any defence
with respect thereto) commenced or threatened by any person in relation to any of the
Finance Documents (or the transactions contemplated therein, including without limitation,
the Offer (whether or not made), the use of the proceeds of the Facility or any acquisition
by the Borrower or any person acting in concert with the Borrower of any of the Target
Securities) (relevant litigation) except to the extent such Losses or claims result from
such Indemnified Persons negligence or misconduct or a breach of any Finance Document by
an Indemnified Person provided thatthe Offer Guarantor may not claim under this Clause
17.3 in respect of any Losses which are covered by the Instruction Letter Indemnity (or
which would be so covered but for an exception in the Instruction Letter Indemnity) and
further provided that:
 (a)
    
    any Finance Party must notify the Borrower promptly and in reasonable detail
of any relevant litigation arising, pending or threatened against such Finance Party
upon becoming aware of it and must keep the Borrower informed of its progress;(b)
    
    any Finance Party must conduct any relevant litigation in good faith and will
give careful consideration to the views of the Borrower in relation to the appointment
of professional advisers and the conduct of any relevant litigation taking into
account both its interests and those of the Borrower; and(c)
    
    a Finance Party may only concede or compromise any claim in respect of any
relevant litigation, if it has:
 (i)
    
    notified the Borrower of the relevant litigation and kept the
Borrower informed of its progress in accordance with paragraph (a) above;




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51 (ii)
    
    complied with paragraph (b) above and has given the Borrower
the opportunity to demonstrate its interest in the concession or compromise;
and(iii)
    
    taken into account the Borrowers legitimate interest.
 17.4
    
    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.
 18.
    
    MITIGATION BY THE LENDERS18.1
    
    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 15 (Tax gross-up and indemnities), Clause 16.1
(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.
 18.2
    
    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 18.1 (Mitigation).(b)
    
    A Finance Party is not obliged to take any steps under Clause 18.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it.
 19.
    
    COSTS AND EXPENSES19.1
    
    Transaction expensesThe Borrower shall promptly on demand 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:




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52 
 (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.
 19.2
    
    Amendment costsIf the Borrower requests an amendment, waiver or consent, the Borrower shall, within three
Business Days of demand, 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 or requirement.19.3
    
    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.




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53 SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
 20.
    
    REPRESENTATIONSThe Borrower makes the representations and warranties set out in this Clause 20 to each
Finance Party on the dates and at the times provided in Clause 20.15 (Times for making
representations and warranties).20.1
    
    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.
 20.2
    
    Binding obligationsThe obligations expressed to be assumed by it in each Transaction Document are, subject to
the Reservations, legal, valid, binding and enforceable obligations.20.3
    
    Non-conflict with other obligationsThe entry into and performance by it of, and the transactions contemplated by, the
Transaction 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; or(c)
    
    any agreement or instrument binding upon it or any of its Material
Subsidiaries.
 20.4
    
    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 Transaction Documents to which
it is a party and the transactions contemplated by those Transaction Documents (up to but
excluding the initial Utilisation Date subject in each case to any prior legal,
governmental, regulatory, competition and/or anti-trust authorisations, clearances or
approvals or the lapse of any relevant waiting or other time periods under applicable law
or regulation of any jurisdiction to which the Transaction Documents might be subject to).20.5
    
    Governing law and enforcementSubject to the Reservations:




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54 
 (a)
    
    The choice of German law as the governing law of the Finance Documents will
be recognised and enforced in its jurisdiction of incorporation.(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.
 20.6
    
    Deduction of Tax; no filing or stamp taxes
 (a)
    
    It is not required to make any deduction for or on account of Tax from any
payment it may make under any Finance Document.(b)
    
    Under the law of its jurisdiction of incorporation it is not necessary that
the Finance Documents be filed, recorded or enrolled with any court or other authority
in that jurisdiction or that any stamp, registration or similar tax be paid on or in
relation to the Finance Documents or the transactions contemplated by the Finance
Documents.
 20.7
    
    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.
 20.8
    
    No misleading information
 (a)
    
    Any factual information provided by the Borrower for the purposes of the
Information Memorandum was true and accurate in all material respects as at the date
it was provided or as at the date (if any) at which it is stated.(b)
    
    The financial projections contained in the Information Memorandum have been
prepared on the basis of recent historical information and on the basis of reasonable
assumptions.(c)
    
    Nothing has occurred or been omitted from the Information Memorandum and no
information has been given or withheld that results in the information contained in
the Information Memorandum being untrue or misleading in any material respect.(d)
    
    The Borrower is not aware of any fact or circumstances that have not been
disclosed or are otherwise publicly known to any of the Finance Parties prior to the
making of this representation and which might, if disclosed, have adversely affected
the decision of a person acting as a prudent businessman considering whether or not to
provide finance to the Borrower upon the terms hereof.




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55 (e)
    
    To the extent any information in respect of the Information Memorandum has
been provided by a member of the Target Group each of the representations provided for
in the paragraphs above are subject to the best knowledge and belief of the Borrower.
 20.9
    
    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.
 20.10
    
    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.20.11
    
    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.20.12
    
    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.20.13
    
    AcquisitionThe Borrower and each of its Subsidiaries (as applicable) have, in transacting the
Acquisition, acted in accordance with the terms of the Transaction Documents and all
applicable laws and regulations, where non-compliance would be materially adverse to the
interests of the Lenders.20.14
    
    US Margin Regulations
 (a)
    
    On the date of this Agreement, it is not a United States person or a
foreign person controlled by a United States person (in each case as such phrases
are defined in Regulation X (12 C.F.R. Part 224) promulgated by the Board of Governors
of the Federal Reserve System of the United States of America) or acting on behalf
of or in conjunction with United States




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##### 



56 persons (as such phrases are used in Regulation X (12 C.F.R. Part 224) promulgated
by the Board of Governors of the Federal Reserve System of the United States of
America) in connection with obtaining the Facility under this Agreement.(b)
    
    No credit extended under this Agreement has been or will be used for the
immediate, incidental or ultimate purpose of buying or carrying any margin stock
(within the meaning of Regulation U (12 C.F.R. Part 221) promulgated by the Board of
Governors of the Federal Reserve System of the United States of America) other than
certain Target Securities which were delisted from the NASDAQ National Market on 19
February 2008.
 20.15
    
    Times for making representations and warranties
 (a)
    
    The representations and warranties set out in this Clause 20 (other than the
representations and warranties set out in Clause 20.8(a) to (c) (No misleading
information)) are made on the date of this Agreement.(b)
    
    The representations and warranties set out in Clause 20.8(a) to (c) (No
misleading information) are deemed to be made, and the representations and warranties
set out in Clause 20.12 (No material adverse change) are deemed to be repeated, on the
Syndication Date, in each case by reference to the facts and circumstances then
existing.(c)
    
    The Repeating Representations are made by the Borrower on the Syndication
Date, on the date of each Utilisation Request and Selection Notice in the related
Utilisation Request or Selection Notice, as applicable, 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).
 21.
    
    INFORMATION UNDERTAKINGSThe undertakings in this Clause 21 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.21.1
    
    Financial statementsThe 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 150 days after
the end of each of its financial years:
 (i)
    
    its audited unconsolidated annual financial statements for
that financial year; and




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57 (ii)
    
    the audited consolidated annual financial statements of the
Group for that financial year; and
 (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 63 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.
 21.2
    
    Requirements as to financial statements
 (a)
    
    Each set of annual financial statements delivered by the Borrower pursuant to
Clause 21.1 (Financial statements) shall be certified by two directors of the Borrower
as in accordance with applicable GAAP fairly representing its financial condition as
at the date which those financial statements were drawn up.(b)
    
    The Borrower shall subject to Clause 21.2(c) and (d) (Requirements as to
financial statements) below procure that each set of financial statements of the
Borrower delivered pursuant to Clause 21.1 (Financial statements) 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
related in accordance with Clause 21.1 (Financial statements). 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




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##### 



58 from the Borrower the generation of which is either unduly onerous or
impracticable for the Borrower.
 (c)
    
    The Borrower may change the accounting principles applied to 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. The Borrower shall
notify the Agent of such change of the accounting principles applied to the
consolidated financial statements of the Group when for the first time supplying the
consolidated financial statements of the Group prepared on such changed basis in
accordance with Clause 21.1 (Financial statements). In the event of any such change to
the basis on which the consolidated financial statements of the Group 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 21.1(a)(ii) or 21.1(b) (Financial statements) 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 21.1(a)(ii) (Financial statements) the
next set of financial statements supplied pursuant to Clause 21.1(b)
(Financial statements); or(ii)
    
    if such notification is in relation to a set of financial
statements supplied pursuant to Clause 21.1(b) (Financial statements) the next
set of financial statements supplied pursuant to Clause 21.1(a)(ii) (Financial
statements).
 (d)
    
    Nothing herein shall be interpreted so as to limit the right of the Borrower
to prepare 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, 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 21.2(c) (Requirements as to financial statements)




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59 the Lenders acting through the Agent however may not request the information referred
to in Clause 21.2(c) (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 21.1(a)(ii) and 21.1(b) (Financial statements)
immediately prior to such change.
 21.3
    
    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 official market
(Amtlicher 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.
 21.4
    
    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.(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).




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60 
 21.5
    
    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.
 Paper Form Lender
 (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;(iv)
    
    any existing information which has been provided under this
Agreement and posted onto the Designated Website is amended; or




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##### 



61 (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.
  (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.
 21.6
    
    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 transfer by a Lender of any of its
rights and obligations under this Agreement to a party that is not a Lender
prior to such assignment or transfer,




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62 (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.
 22.
    
    GENERAL UNDERTAKINGSThe undertakings in this Clause 22 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.22.1
    
    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,
  22.2
    
    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.22.3
    
    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.(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 Cash Collateral provided pursuant to the terms of this
Agreement;(iii)
    
    any Security arising by operation of law (or by an agreement
having the same effect) in the ordinary course of business;




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63 (iv)
    
    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;(v)
    
    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;(vi)
    
    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) 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;(vii)
    
    any Security arising in connection with conditional sale and
retention of title agreements;(viii)
    
    any Security arising pursuant to or in connection with:
 (1)
    
    finance leases;(2)
    
    securities lending transactions (including
without limitation repurchase transactions);(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;




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64 
 (ix)
    
    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;(x)
    
    any Security granted to another member of the Group;(xi)
    
    any Security created or subsisting with the prior written
consent of the Majority Lenders;(xii)
    
    any Security created or subsisting to secure any obligations
incurred in order to comply with the requirements of Section 8a of the German
Altersteilzeitgesetzand/or Section 7d of the German Social Security Code
(Sozialgesetzbuch IV) (if and to the extent the obligations so secured
constitute Financial Indebtedness); and(xiii)
    
    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.
 22.4
    
    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)
    
    The Borrower shall not (and shall ensure that none of its Subsidiaries will)
enter into any transaction which would constitute a Target Disposal Event prior to the
Offer Guarantee Discharge Date.(c)
    
    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;(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




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65 (v)
    
    required by law or any governmental authority or agency.
 22.5
    
    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.22.6
    
    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.22.7
    
    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.22.8
    
    Conduct of Offer
 (a)
    
    The Borrower shall:
 (i)
    
    keep the Agent and the Mandated Lead Arrangers informed as to
the status and progress of the Offer; and(ii)
    
    comply (and shall procure that Bidco complies) in all
material respects with the Offer Documents and in all material respects with
any applicable laws or regulations relevant in the context of the Offer.
 (b)
    
    Except to the extent required under applicable law (including French
regulations, in particular for the purpose of the draft note dinformationto be filed
with the AMF, and the U.S. Securities Exchange Act of 1934 and the regulations
promulgated thereunder) the Borrower agrees that no announcements regarding any
Finance Party or the Facility will be made without the prior written consent of the
Mandated Lead Arrangers (not to be unreasonably withheld). Any other announcement to
be made during the conduct of the Offer will be communicated in advance, to the extent
practicable, to the Mandated Lead Arrangers.(c)
    
    The Borrower shall procure that the lettre de dépôtand draft note
dinformationfor the initial announcement of the Offer, together with such other of
the Offer Documents as is required to be filed in each jurisdiction




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##### 



66 where the Target is listed, are filed with the relevant authorities with contents
consistent with the Agreed Terms. The Borrower shall procure that the lettre de dépôt
and draft note dinformationfor the initial announcement of the Offer is filed no
later than 30 November 2007.(d)
    
    The Borrower shall procure that the communiqué de presseto be published in
the press upon filing of the Offer in accordance with article 231-16 III of the AMF
general regulations is consistent with the Agreed Terms.(e)
    
    The Borrower shall not (and shall procure that Bidco shall not) make any
amendment to or grant any consent or waiver in respect of any term or condition of the
Offer or any Offer Document which would:
 (i)
    
    not be consistent with the Agreed Terms; or(ii)
    
    otherwise be reasonably likely to materially adversely affect
the interests of the Finance Parties,
 other than amendments, consents or waivers to which the Offer Guarantor and the
Majority Lenders have given their prior consent provided thatonly the consent of the
Offer Guarantor and the Mandated Lead Arrangers shall be required in relation to
amendments, consents or waivers which would not be consistent with the terms referred
to in paragraph (c) of the definition of Agreed Terms.(f)
    
    The Borrower shall not (and shall procure that Bidco shall not) engage in any
transaction that may result in the price to be offered by the Borrower (or, as the
case may be, Bidco) to holders of Target Securities not being consistent with the
agreements set out in the Maximum Price Letter.(g)
    
    If the Target adopts Substantial Measures, the Borrower shall use its best
efforts (or shall procure that Bidco uses its best efforts) to obtain AMF
authorisation to withdraw the Offer and upon obtaining such authorisation shall
promptly withdraw (or procure that Bidco promptly withdraws) the Offer, in each case
unless the Majority Lenders agree otherwise in writing.(h)
    
    The Borrower shall supply a conformed copy of each Offer Document which is
not signed on the date of this Agreement promptly following signature of the same.(i)
    
    The Offer Guarantor agrees with the Lenders that it will not agree to any
amendment of, or waiver in relation to, any Offer Document which would not be
consistent with the terms referred to in paragraph (b) of the definition of Agreed
Terms.




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##### 



67 
 22.9
    
    Anti-trust clearanceThe Borrower shall take (and shall procure that Bidco takes) all reasonable commercial
steps to obtain all requisite competition, governmental and regulatory anti-trust
clearances and approvals required in connection with, or as a result of, the Offer and
shall promptly provide copies thereof to the Agent.23.
    
    EVENTS OF DEFAULTEach of the events or circumstances set out in Clause 23 is an Event of Default. Without
prejudice to the provisions of this Agreement, section 490(1) of the German Civil Code
(Bürgerliches Gesetzbuch) shall not apply.23.1
    
    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.
 23.2
    
    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.
 23.3
    
    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 14 Business Days of the earlier of the Agent giving notice to the Borrower
or the Borrower becoming aware of the failure to comply.23.4
    
    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.




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68 (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 23.4 if the aggregate amount
of Financial Indebtedness falling within paragraphs (a) and (b) above is less than EUR
20 million (or its equivalent in any other currency or currencies).
 23.5
    
    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;(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




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69 (v)
    
    takes any corporate action for the purpose of effecting any
of the foregoing with respect to itself.
 23.6
    
    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;(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:




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70 
 (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.
 23.7
    
    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.23.8
    
    Invalidity/RepudiationAny Finance Document becomes invalid or ineffective or the Borrower repudiates a Finance
Document or evidences an intention to repudiate a Finance Document.23.9
    
    AccelerationSubject to Clauses 4.3 (Certain Funds) and 23.10 (Clean-Up Period), on and at any time
after the occurrence of an Event of Default which is continuing the Agent may, and shall if
so directed by the Majority Lenders, by notice to the 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;




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71 (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; and/or(d)
    
    require the Borrower to fully Cash Collateralise any (actual or contingent)
liability of the Borrower under the Instruction Letter Indemnity then outstanding (in
which case the Offer Guarantor shall be obliged to accept such Cash Collateralisation
and Clauses 9.7 (Cash-collateralisation of Instruction Letter Indemnity) (other than
Clause 9.7(b)) and 9.8 (Withdrawals from the Cash Collateral Account) shall apply
mutatis mutandis).
 23.10
    
    Clean-Up PeriodIf during the Clean-Up Period a matter or circumstance exists in respect of the Target
and/or any member of the Target Group (or in respect of any obligation to procure or ensure
in relation to any member of the Target Group) which would constitute:
 (a)
    
    a breach of any representation or warranty made in Clause 20
(Representations);(b)
    
    a breach of any covenant set out in Clause 22 (General Undertakings); or(c)
    
    a Default,
 such matter or circumstance will not constitute a breach of a representation or warranty or
a breach of a covenant or a Default (as the case may be) until after the last day of the
Clean-Up Period, provided thatreasonable steps are being taken to cure such matter or
circumstance (following the Borrower becoming aware of the same), unless such matter or
circumstance:
 (i)
    
    could reasonably be expected to have a Material Adverse Effect; or(ii)
    
    has been procured by, or approved by, the Borrower.




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72 
 SECTION 9
CHANGES TO PARTIES
 24.
    
    CHANGES TO THE LENDERS24.1
    
    Assignments and transfers by the Lenders
 (a)
    
    Subject to this Clause 24, a Lender (the Existing Lender) may assign any of
its rights or transfer any of its rights and/or obligations, to another bank or
financial institution or to a trust, fund or other entity which is regularly engaged
in or established for the purpose of making, purchasing or investing in loans,
securities or other financial assets (the New Lender).(b)
    
    Nothing in this Agreement shall prevent any Lender from assigning or pledging
all or any part of its rights or interests under this Agreement to any central bank or
any supranational bank as security for its borrowings from that central bank or
supranational bank, provided that such assignment or pledge does not involve a release
of such Lender from any of its obligations under this Agreement.
 24.2
    
    Conditions of assignment or transfer
 (a)
    
    The prior written consent of the Borrower is required for an assignment or
transfer by an Existing Lender, unless:
 (i)
    
    the assignment or transfer is to another Lender or an
Affiliate of a Lender;(ii)
    
    an Event of Default has occurred and is continuing; or(iii)
    
    the assignment or transfer is effected by an Existing Lender
on the Syndication Date.
 (b)
    
    The consent of the Borrower to an assignment or transfer must not be
unreasonably withheld or delayed. 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.(c)
    
    Prior to the Offer Guarantee Discharge Date, the consent of the Offer
Guarantor is required for any transfer of obligations by an Existing Lender.(d)
    
    The consent of the Borrower to an assignment or transfer must not be withheld
solely because the assignment or transfer may result in an increase to the Mandatory
Cost.




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##### 



73 (e)
    
    An assignment will only be effective on:
 (i)
    
    receipt by the Agent of written confirmation from the New
Lender (in form and substance satisfactory to the Agent) that the New Lender
will assume the same obligations to the other Finance Parties as it would have
been under if it was an Original Lender; and(ii)
    
    performance by the Agent of all know your customer or other
checks relating to any person that it is required to carry out in relation to
such assignment to a New Lender, the completion of which the Agent shall
promptly notify to the Existing Lender and the New Lender.
 (f)
    
    A transfer will only be effective if the procedure set out in Clause 24.5
(Procedure for transfer) is complied with.(g)
    
    If:
 (i)
    
    a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or changes its Facility Office; and(ii)
    
    as a result of circumstances existing at the date the
assignment, transfer or change occurs, the Borrower would be obliged to make a
payment to the New Lender or Lender acting through its new Facility Office
under Clause 15 (Tax gross-up and indemnities) or Clause 16 (Increased costs),
  24.3
    
    Fees
 (a)
    
    The New Lender shall, on the date upon which an assignment or transfer takes
effect, pay to the Agent (for its own account) a fee of EUR 2,500.(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 2,500.




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74 
 24.4
    
    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, any other member of
the Group or any member of the Target 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 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-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause 24; 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.




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##### 



75 
 24.5
    
    Procedure for transfer
 (a)
    
    Subject to the conditions set out in Clause 24.2 (Conditions of assignment or
transfer) an assignment or transfer (Vertragsübernahme) is effected in accordance with
paragraph (b) when the Agent executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to
paragraph (b), as soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this Agreement, execute that
Transfer Certificate.(b)
    
    The Agent shall only be obliged to execute a Transfer Certificate delivered
to it by the Existing Lender and the New Lender once it is satisfied it has complied
with all necessary know your customer or other similar checks under all applicable
laws and regulations in relation to the transfer to such New Lender.(c)
    
    On the Transfer Date:
 (i)
    
    to the extent that in the Transfer Certificate the Existing
Lender seeks to assign or transfer its rights and/or 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
the 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 transfer 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




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76 (iv)
    
    the New Lender shall become a Party as a Lender.
 24.6
    
    Copy of Transfer Certificate to BorrowerThe Agent shall, as soon as reasonably practicable after it has executed a Transfer
Certificate, send to the Borrower a copy of that Transfer Certificate.24.7
    
    Disclosure of informationAny Lender may disclose to any of its Affiliates and any other person:
 (a)
    
    to (or through) whom that Lender assigns or transfers (or may potentially
assign or transfer) all or any of its rights and obligations under this Agreement;(b)
    
    with (or through) whom that Lender enters into (or may potentially enter
into) any sub-participation in relation to, or any other transaction under which
payments are to be made by reference to, this Agreement or the Borrower; or(c)
    
    to whom, and to the extent that, information is required to be disclosed by
any applicable law or regulation,
 any information about the Borrower, the Group, the Target Group and the Finance Documents
as that Lender shall consider appropriate if, in relation to paragraphs (a) and (b) above,
the person to whom the information is to be given has entered into a Confidentiality
Undertaking.25.
    
    CHANGES TO THE BORROWERThe Borrower may not assign any of its rights or transfer any of its rights or obligations
under the Finance Documents.




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##### 



77 
 SECTION 10
THE FINANCE PARTIES
 26.
    
    ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS26.1
    
    Appointment of the Agent
 (a)
    
    Each other Finance Party appoints the Agent to act as its agent under and in
connection with the Finance Documents.(b)
    
    Each other Finance Party 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)
    
    The Agent shall be released from the restriction set out in section 181 of
the German 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 the relevant Finance Party. A Finance Party which is barred by its constitutional
documents or by law from granting such exemption shall notify the Agent accordingly.
 26.2
    
    Duties of the Agent
 (a)
    
    The Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Agent for that Party by any other Party.(b)
    
    Except where a Finance Document specifically provides otherwise, the Agent is
not obliged to review or check the adequacy, accuracy or completeness of any document
it forwards to another Party.(c)
    
    If the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a Default, it
shall promptly notify the other Finance Parties.(d)
    
    If the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the Agent or a
Mandated Lead Arranger) under this Agreement it shall promptly notify the other
Finance Parties.(e)
    
    The Agents duties under the Finance Documents are solely mechanical and
administrative in nature.
 26.3
    
    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.




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##### 



78 
 26.4
    
    No fiduciary duties
 (a)
    
    Nothing in this Agreement constitutes the Agent or a Mandated Lead Arranger
as a trustee or fiduciary of any other 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.
 26.5
    
    Business with the GroupThe Agent and each Mandated Lead Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member of the Group.26.6
    
    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 23.1 (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.(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)
    
    Notwithstanding any other provision of any Finance Document to the contrary,
neither the Agent nor a Mandated Lead Arranger is obliged to do or omit to do anything
if it would or might in its reasonable opinion




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##### 



79 constitute a breach of any law or regulation or a breach of a fiduciary duty or duty
of confidentiality.
 26.7
    
    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.
 26.8
    
    Responsibility for documentationNeither the Agent nor any Mandated Lead Arranger:
 (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 or any of them, the Borrower or any other person given in or in connection
with any Finance Document or the Information Memorandum; or(b)
    
    is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement or document
entered into, made or executed in anticipation of or in connection with any Finance
Document.




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##### 



80 
 26.9
    
    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.(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 not rely on any statement in relation to such checks made by
the Agent or any Mandated Lead Arranger.
 26.10
    
    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).26.11
    
    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




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81 resignation was given, the Agent (after consultation with the Borrower) may appoint a
successor Agent.(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 26. 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 and (until after the Offer Guarantee
Discharge Date) with the prior consent of the Offer Guarantor, the Majority Lenders
may, by notice to the Agent, require it to resign in accordance with paragraph (b)
above. In this event, the Agent shall resign in accordance with paragraph (b) above.
 26.12
    
    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.
 26.13
    
    Relationship with the Lenders
 (a)
    
    The Agent may treat each Lender as a Lender, entitled to payments under this
Agreement and acting through its Facility Office unless it has received not less than
five Business Days prior notice from that Lender to the contrary in accordance with
the terms of this Agreement.(b)
    
    Each Lender shall supply the Agent with any information required by the Agent
in order to calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory Cost
formulae).




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82 
 26.14
    
    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 and
each member of the Target 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 Memorandum 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.
 26.15
    
    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.26.16
    
    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 Documents that Party shall be regarded as having received any
amount so deducted.




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83 
 27.
    
    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.
 28.
    
    SHARING AMONG THE FINANCE PARTIES28.1
    
    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 29 (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 29
(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 29.5
(Partial payments).
 28.2
    
    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 29.5 (Partial payments).28.3
    
    Recovering Finance Partys rightsOn a distribution by the Agent under Clause 28.2 (Redistribution of payments), each Finance
Party will assign to the Recovering Finance Party the claim to




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84 which the Sharing Payment is allocated and the Borrower shall be liable to the Recovering
Finance Party in an amount equal to the Sharing Payment.28.4
    
    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 28.2 (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 Recovering Finance Party shall re-assign to
the relevant Finance Party any claim assigned to it by that Finance Party pursuant to
clause 28.3 (Recovering Finance Partys rights).
 28.5
    
    Exceptions
 (a)
    
    This Clause 28 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.(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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85 
 SECTION 11
ADMINISTRATION
 29.
    
    PAYMENT MECHANICS29.1
    
    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 (subject to paragraph (b) below and otherwise 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)
    
    A payment required to be made by a Lender to the Agent for purposes of
funding such Lenders participation in any Offer Loan drawn in the Base Currency for
purposes of financing of any Offer Payment (excluding any such Offer Loan where the
Quotation Day for the first Interest Period corresponds to the Utilisation Date) shall
be made available to the Agent for value on the due date prior to 10.00am.(c)
    
    Payment shall be made to such account with such bank as the Agent specifies.
 29.2
    
    Distributions by the AgentEach payment received by the Agent under the Finance Documents for another Party shall,
subject to Clause 29.3 (Distributions to the Borrower), Clause 29.4 (Clawback) and Clause
26.16 (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:
 (a)
    
    such account with such bank as that Party may notify to the Agent by not less
than five Business Days notice; or(b)
    
    in the case of:
 (i)
    
    an Offer Loan drawn for purposes of financing of any Offer
Payment, the Settlement Account; or(ii)
    
    an Offer Loan drawn for a purpose specified in Clause 3.1(b),
(c) or (d) (Purpose), an account specified by the Offer Guarantor, the Agent
or to the Cash Collateral Account, as applicable.




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86 
 29.3
    
    Distributions to the BorrowerThe Agent may (with the consent of the Borrower or in accordance with Clause 30 (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.29.4
    
    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 date of receipt by the Agent, calculated by the Agent to
reflect its cost of funds.
 29.5
    
    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.




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87 
 29.6
    
    No set-off by the BorrowerAll 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
the counterclaim is undisputed or has been confirmed in a final non-appealable judgement.29.7
    
    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.
 29.8
    
    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.
 30.
    
    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
of the German 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.




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88 31.
    
    NOTICES31.1
    
    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.31.2
    
    AddressesThe address and fax number (and the department or officer, if any, for whose attention the
communication is to be made) of each Party for any communication or document to be made or
delivered under or in connection with the Finance Documents is:
 (a)
    
    in the case of the 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 Mandated Lead Arrangers, the Offer Guarantor and the
Agent, 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.31.3
    
    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):
 (i)
    
    if by way of fax, when received in legible form; or(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 31.2 (Addresses), if addressed to that department or
officer.(b)
    
    Any communication or document to be made or delivered to the Agent or the
Offer Guarantor will be effective only when actually received by the Agent or the
Offer Guarantor, respectively, and then only if it is expressly marked for the
attention of the department or officer identified with the Agents and Offer
Guarantors, respectively, signatures below (or any




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89 substitute department or officer as the Agent or the Offer Guarantor, respectively,
shall specify for this purpose).(c)
    
    All notices from or to the Borrower shall be sent through the Agent.
 31.4
    
    Notification of address and fax numberPromptly upon receipt of notification of an address and fax number or change of address or
fax number pursuant to Clause 31.2 (Addresses) or changing its own address or fax number,
the Agent shall notify the other Parties.31.5
    
    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.
 31.6
    
    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 under item 1,
paragraphs (1) and (2) and item 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.




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90 
 32.
    
    CALCULATIONS AND CERTIFICATES32.1
    
    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.32.2
    
    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.32.3
    
    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.33.
    
    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.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.34.
    
    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.




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91 35.
    
    AMENDMENTS AND WAIVERS35.1
    
    Required consents
 (a)
    
    Subject to Clause 35.2 (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.
 35.2
    
    Exceptions
 (a)
    
    An amendment or waiver that has the effect of changing or which relates to:
 (i)
    
    the definitions of Majority Lenders or the Target in
Clause 1.1 (Definitions);(ii)
    
    an extension to the date for, or alteration in the amount or
currency 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(vii)
    
    Clause 2.2 (Finance Parties rights and obligations), Clause
3.1 (Purpose), Clause 4.2(b) (Further conditions precedent) (to the extent it
relates to Clause 5.2(a)(iii)(4) (Completion of a Utilisation Request)),
Clause 5.2(a)(iii) (Completion of a Utilisation Request), Clause 9.3
(Counter-guarantee by Lenders), Clause 10.1 (Counter-indemnity by the
Borrower), Clause 24 (Changes to the Lenders), Clause 28 (Sharing among the
Finance Parties), Clause 29.2(b) (Distributions by the Agent) or this Clause
35,
  (b)
    
    An amendment or waiver which relates to the rights or obligations of the
Agent, any Mandated Lead Arranger or the Offer Guarantor (including,




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92 without limitation, in the case of the Offer Guarantor any amendment or waiver of
Clause 4.2(b) (Further conditions precedent) (to the extent it relates to Clause
5.2(a)(iii)(4) (Completion of a Utilisation Request)), Clause 5.2(a)(iii)(4)
(Completion of a Utilisation Request), Section 5 (Offer Guarantee) and the related
definitions in Clause 1.1 (Definitions)) may not be effected without the consent of
the Agent, such Mandated Lead Arranger or the Offer Guarantor (as the case may be).
 36.
    
    MISCELLANEOUS36.1
    
    Conclusion of this Agreement
 (a)
    
    The Parties may choose to conclude this Agreement by an exchange of signed
signature pages, transmitted by means of telecommunication (telekommunikative
Übermittlung) by way of fax or attached as an electronic photocopy (pdf., tif., etc.)
to electronic mail.(b)
    
    If the Parties choose to conclude this Agreement in accordance with paragraph
(a) above, they will transmit the signed signature page(s) of this Agreement to Dr.
Thomas O. Cron, Hengeler Mueller, Frankfurt am Main office, fax +49-69-17095-7380,
e-mail: thomas.cron@hengeler.com (the Recipient). The Agreement will be considered
concluded once the Recipient has actually received the signed signature pages (Zugang
der Unterschriftsseite(n)) from all Parties and at the time of the receipt of the last
outstanding signature page.(c)
    
    For the purposes of this Clause 36.1 only, the Parties agree to appoint the
Recipient as agent of receipt (Empfangsvertreter) and expressly allow (gestatten) the
Recipient to collect the signed signature pages from all and for all Parties. 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 originals of the signature pages transmitted to it by means of
telecommunication, the genuineness of all signatures on the original signature pages
and the signing authority of the signatories.
 36.2
    
    CounterpartsEach Finance Document may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of the Finance
Document.36.3
    
    Borrowing for own benefitThe Borrower (only to the extent it raises amounts under this Agreement not for purposes of
onlending such amounts to Bidco or Target) hereby confirms that it is the beneficiary
within the meaning of Section 8 of the German Money




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##### 



93 Laundering Act (Gesetz über das Aufspüren von Gewinnen aus schweren Straftaten
(Geldwäschegesetz)) for each part of the Facility made available to it. If and to the
extent the Borrower raises amounts under this Agreement for purposes of onlending such
amounts to Bidco or Target, such amounts may be drawn for the account of Bidco or Target,
as applicable, and, accordingly, Bidco or Target, as applicable, may qualify as beneficiary
within the meaning of Section 8 of the German Money Laundering Act.




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94 
 SECTION 12
GOVERNING LAW AND ENFORCEMENT
 37.
    
    GOVERNING LAWThis Agreement is governed by the laws of the Federal Republic of Germany.38.
    
    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).




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##### 



95 
 SCHEDULE 1
The Original Lenders
 CommitmentName of Original Lender
    
    (EUR)Deutsche Bank Luxembourg S.A.
    
    
    491,279,918.90ABN AMRO Bank N.V., Niederlassung Deutschland
    
    
    491,279,918.91BNP Paribas S.A. Niederlassung Frankfurt am Main
    
    
    491,279,918.91Commerzbank Aktiengesellschaft
    
    
    491,279,918.91JPMorgan Chase Bank, N.A.
    
    
    491,279,918.91Sumitomo Mitsui Banking Corporation
    
    
    491,279,918.91TOTAL
    
    
    2,947,679,513.45




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##### 



96 SCHEDULE 2
CONDITIONS PRECEDENT
 1.
    
    The Borrower
 (1)
    
    Copy of the articles of association (Satzung) of the Borrower;(2)
    
    recent and up-to-date certified copy of an excerpt from the competent
commercial register relating to the Borrower;(3)
    
    specimen of the signatures of each person authorised to execute the Finance
Documents;(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 and
the due execution of this Agreement by, the Borrower;(5)
    
    legal opinion from Hengeler Mueller, legal advisors to Deutsche Bank AG 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 14 (Fees) and Clause 19 (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 on which this Agreement has entered into
effect;(8)
    
    the Original Financial Statements of the Borrower.
 2.
    
    Offer DocumentsA copy of each of the Offer Documents, of the Result Notice and of the Euronext
announcement stating the initial Settlement Date and a level of acceptances that complies
with the terms referred to in paragraph (b) of the definition of Agreed Terms.




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97 
 SCHEDULE 3
Requests
 Part I  Utilisation Request
  Agent
   SAP AG  EUR 5,000,000,000 (subsequently reduced to EUR 2,947,679,513.45)
Term Loan Facility Agreement
dated 1 October 2007 (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:
 [Purpose:
    
    []]1Proposed 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) (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.][We confirm that no
Major Default has occurred and is continuing or would result from the making of the Loan
referred to above.][We confirm that the amount of the Loan requested herein does not exceed an amount which is
equal to the aggregate amount paid by us (or Bidco) to holders of Target Securities
acquired by way of Supplemental Offer Market Purchases at the time of delivery of this
Utilisation Request lessthat part (if any) of such amount which has been previously
financed either by way of (an) Offer Loan(s)
 
 1
    
    To be completed by way of specifying a purpose in
accordance with Clause 3.1 (Purpose) of the Agreement only in relation to Loans
drawn on or prior to the final Settlement Date in respect of the Offer.




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98 drawn for purposes of financing of (an) Offer Payment(s) or by way of any other Loan(s)
previously drawn for the purpose specified in Clause 3.1(e) (Purpose) of the
Agreement.]24.
    
    The proceeds of this Loan should be credited to [account].5.
    
    This Utilisation Request is irrevocable.
 Yours faithfullyauthorised signatory forSAP AG
 
 2
    
    To be inserted in case of a Loan drawn for the purpose
specified in Clause 3.1(e) (Purpose) of the Agreement.




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99 Part II  Selection Notice
  Agent
   SAP AG  EUR 5,000,000,000 (subsequently reduced to EUR 2,947,679,513.45)
Term Loan Facility Agreement
dated 1 October 2007 (the Agreement)
 1.
    
    We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have
the same meaning in this Selection Notice unless given a different meaning in this Selection
Notice.2.
    
    We refer to the following Loan with an Interest Period ending on [ ].3.
    
    We request that the next Interest Period for the above Loan is [ ].4.
    
    We confirm that the Repeating Representations are true in all material respects on the date
of this Selection Notice.5.
    
    This Selection Notice is irrevocable.
 Yours faithfullyauthorised signatory forSAP AG




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100 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 or any relevant regulatory
authority in the United States of America.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 certain 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 x 0.01 per cent. per annum100  (A + C)
 (b)
    
    in relation to a Loan in any currency other than sterling:
 E x 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 11.3 (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 FSA Supervision
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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##### 



102 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,
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.




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103 SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
 To:
    
    [] as Agent
 From:
    
    [The Existing Lender] (the
Existing Lender) and [The New Lender]
(the New Lender)
  SAP AG  EUR 5,000,000,000 (subsequently reduced to EUR 2,947,679,513.45)
Term Loan Facility Agreement
dated 1 October 2007 (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 24.5 (Procedure for transfer):
 (a)
    
    The Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by way of assumption (Vertragsübernahme) all or part of
the Existing Lenders Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 24.5 (Procedure for transfer).(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 31.2 (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 24.4 (Limitation of responsibility of Existing Lenders).4.
    
    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.5.
    
    This Transfer Certificate is governed by German law.




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##### 



104 
 THE SCHEDULE
Commitment/rights and obligations to be transferred   insert relevant details   Facility Office address, fax number and attention details for notices and account
details for payments
 [Existing Lender]
    
    [New Lender]By:
    
    By:
 
 Agent




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105 SCHEDULE 6
Existing Security
 Total Principal Amount ofName of Borrower
    
    
    
    Financial Indebtednessor Material Subsidiary
    
    Security
    
    SecuredN/A
    
    N/A
    
    N/A




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106 SCHEDULE 7
CONFIDENTIALITY UNDERTAKING
 [Letterhead of Lender]
 To:
    
    [insert name of potential transferee]Re:
    
    The Agreement (Syndicated Multicurrency Term Loan Facility Agreement)Borrower:
    
    SAP AGDate:
    
    1 October 2007Amount:
    
    5,000,000,000 (subsequently reduced to 2,947,679,513.45)Agent:
    
    [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 Agreement (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 Agreement.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




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##### 



107 
 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 or otherwise acquire (by assignment or sub-participation) an interest,
direct or indirect, in any of the Facility or (b) twelve months after you have returned all
Confidential




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##### 



108 Information supplied to you by us and destroyed or permanently erased all copies of
Confidential Information made by you (other than any such Confidential Information or
copies which have been disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or
which, pursuant to paragraph 4 above, are not required to be returned or destroyed).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 given for the benefit of SAP
AG and each other member of the Group  in the




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##### 



109 form of a third party agreement (echter 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
memorandum 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 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;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 Agreement.Please acknowledge your agreement to the above by signing and returning the enclosed copy.




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##### 



110 
    Lender
 Lender
    potential transferee




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##### 



111 SCHEDULE 8
Timetables
 Loans in euro
    

Loans in other currenciesApproval as an Optional
Currency, if required
(Clause 4.4 (Conditions
relating to Optional
Currencies))
    
    
    
    U-5Agent notifies the
Borrower if a currency is
approved as an Optional
Currency in accordance
with Clause 4.4
(Conditions relating to
Optional Currencies)
    
    
    
    U-4Delivery of a duly
completed Utilisation
Request (Clause 5.1(c)
(Delivery of a Utilisation
Request))
    
    U-3 11.00am
    
    U-4 11.00amDelivery of a duly
completed Selection Notice
(Clause 12.1 (Selection of
Interest Periods))
    
    U-3 11.00am
    
    U-3 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)
    
    
    
    Quotation Day 9.00amAgent gives notice in
accordance with Clause 6.2
(Unavailability of a
currency)
    
    
    
    Quotation Day 11.00amEURIBOR or LIBOR is fixed
    
    Quotation Day as of
11:00a.m. Brussels
time in respect of
EURIBOR
    
    Quotation Day as of
11:00 a.m. London
time in respect of
LIBOR
 
 U = date of utilisation/first day of interest periodU - X = X Business Days prior to date of utilisation/first day of interest period




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##### 



112 SCHEDULE 9
Reservations
 A.
    
    Germany1.
    
    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 this 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, at the time any Loan is made or when the Loans are not accelerated when permitted under
this Agreement, the Borrower is in a crisis, then it may be considered (in particular on the
basis of Section 30 subs. of the German Limited Liability Companies Act (Gesetz betreffend die
Gesellschaften mit beschränkter Haftungapplied mutatis mutandisand case law) that in the
event that the Finance Parties (or any of them) are under a financing responsibility
(Finanzierungsverantwortung) for the Borrower or are a person closely related (nahestehende
Person) to a person subject to such financing responsibility for the Borrower or a company
affiliated to any of them (verbundenes




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##### 



113 Unternehmen), all claims of such Finance Party against the Borrower are subordinated in the
insolvency of the Borrower and the Finance Parties can, therefore, not demand repayment of
such claims as ordinary creditors. The extent and scope of controlling rights required for
such treatment is uncertain provided however that the German Federal Supreme Court
(Bundesgerichtshof) has held that with regard to a stock corporation (Aktiengesellschaft)
such treatment in principle requires a shareholding of the relevant person in the
registered share capital of the stock corporation of at least 25%.7.
    
    If and to the extent that a claim of a Finance Party against the Borrower is subordinated
pursuant to the criteria set out in 6. above, such Finance Party is not entitled to receive
and will be obliged to repay any payments on its subordinated claim. The aforesaid rules would
also apply to any payment received by the Finance Party prior to the insolvency of the
Borrower.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, an assignment of monetary
claims which are governed by German law would be valid even where this Agreement states that a
claim shall not be assignable.14.
    
    Any prohibition of set-off contained in this Agreement may not be upheld to the extent that
the relevant obligors counterclaim has been upheld in a final judgement or is undisputed.




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114 15.
    
    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.16.
    
    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.B.
    
    France1.
    
    In accordance with Article 1244-1 of the French Civil Code:
 (a)
    
    a court may grant time to the Borrower, as the case may be, under the
Transaction Documents or reschedule payments under the Transaction Documents (for a
period of up to two years, which period may be extended under certain circumstances);(b)
    
    a court may, by a special order, decide that any payments should be applied
to the repayment of principal or, with respect to amounts for which time has been
granted or the payment of which has been rescheduled, that such amounts shall bear
interest not at the contractual rate but at a lower rate which shall be not less than
the official rate (taux légal); and(c)
    
    any enforcement measures which are pending will be suspended by a court order
under Article 1244-1 of the French Civil Code and any additional interest or penalty
for late payment will not be due for the period ordered by the court.
 2.
    
    The initiation of proceedings in France by any Finance Party for the purpose of enforcing the
Transaction Documents, would require that Finance Party to pay the court fees applicable to
all litigants.3.
    
    The Transaction Documents must be translated into French by an official sworn translator in
order to be submitted as evidence in any action or proceeding before a French court or public
body or used for any purpose with public bodies.4.
    
    Where a debt is expressed in a foreign currency, a French court may, if so requested, grant
an order in such currency. If the order is given in Euros, it would normally be given by
reference to the relevant amount of foreign currency converted at the rate of exchange
applicable on the effective date of payment. If




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115 a separate order is sought on the basis of a currency indemnity, after an order has been
previously obtained on a credit agreement, the court may hold that the currency indemnity
is superseded by such previous order; furthermore, with respect to a bankruptcy,
insolvency, liquidation, moratorium, reorganization, reconstruction or similar proceeding,
French law requires that all claims or debts be converted to equivalent Euros amounts at an
exchange rate determined at the date of the judgment declaring the commencement of the
proceeding.5.
    
    Pursuant to Article 1152 of the French Civil Code a French judge has the power to decrease
stipulated penalties (clause pénale) if they are deemed manifestly excessive.6.
    
    French case law has held that the effectiveness of terms exculpating a party from a liability
or duty otherwise owed is limited to the extent of the obligors willful misconduct (faute
intentionnelle) or gross negligence (faute lourde).7.
    
    A conditional obligation arising from an agreement may not be enforced by French courts if
the determination as to whether the conditions have been satisfied is left to the
discretionary power of the party undertaking such conditional obligation (such condition being
named potestative).8.
    
    A clause stipulating that the invalidity of any provision of the agreement will not
invalidate any other provisions of such agreement may not be enforced by French courts if the
court considers that such clause is an essential provision of the agreement.9.
    
    Any provision of any Transaction Document stating that no failure or delay in exercising any
right or remedies shall operate as a waiver of such rights or remedies may not be effective.10.
    
    A French court will not necessarily grant an order for specific performance which is not
available where damages are considered by the court to be an adequate alternative remedy
(except with respect to obligations for the payment of a sum of money).11.
    
    Any indemnity provision entitling one party to recover its legal and other enforcement costs
and expenses from another may be limited to the recovery of such costs and expenses as the
French court deems appropriate.12.
    
    Any provisions of the Transaction Documents which require increased payments in respect of
any withholding or deduction required under French law may not be valid or enforceable in
France or before a French court.13.
    
    A French Court might not treat as conclusive those certificates and determinations which the
Finance Documents state are to be so treated.




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##### 



116 14.
    
    Before French Courts, claims may become time-barred or may be or become subject to the
defence of set-off or counterclaim.15.
    
    A French court may disclaim competence if the Lenders have previously brought a proceeding
against the Borrower in connection with any Transaction Document in another competent
jurisdiction if both proceedings are based upon identical or connected (connexes) claims.C.
    
    United States1.
    
    The obligations under the Transaction Documents are subject to limitations arising from the
laws relating to bankruptcy, insolvency, reorganization, moratorium and similar laws relating
to or affecting creditors rights generally (including without limitation fraudulent transfer
rules) and by general principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief, regardless of whether considered in a proceeding in
equity or at law.2.
    
    The obligations under the Offer Documents, to the extent they relate to any Offer in the
United States of America, is subject to limitations set forth in the Securities Exchange Act
of 1934 and the regulations promulgated thereunder and state securities laws.




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##### 



117 
 SCHEDULE 10
Form of Demand
 To:
    
    SAP AGFrom:
    
    [Agent]Date:
    
    [     ]
 SAP AG  EUR 5,000,000,000 (subsequently reduced to EUR 2,947,679,513.45)
Term Loan Facility Agreement
dated 1 October 2007 (the Agreement)
 1.
    
    We refer to the Agreement. This is the notice referred to in Clause 10.1(a)
(Counter-indemnity by the Borrower) of the Agreement.2.
    
    As you have failed to make payment of [specify amount] pursuant to Clause 9.2 (Payment under
the Instruction Letter Indemnity) of the Agreement and the Lenders have paid [specify amount]
pursuant to Clause 9.3 (Counter-guarantee by Lenders), we hereby make demand on you to pay an
equivalent amount of euros [to be completed] to our account number [to be completed] for the
account of the Lenders within three Business Days of your receipt of this demand.
  Agent




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##### 



118 SIGNATURES
 THE BORROWER
 SAP AGAddress:
    
    Dietmar-Hopp-Allee 1669190 WalldorfFax:
    
    + 49 6227 7 44778Attention:
    
    Jörg Wiemer




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119 THE MANDATED LEAD ARRANGERSDEUTSCHE BANK AGAddress:
    
    Große Gallusstr. 10-14
60311 Frankfurt am MainFax:
    
    +49 69 910 38793Attention:
    
    Thomas NeidertABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLANDAddress:
    
    Theodor-Heuss-Allee 80
60486 Frankfurt am MainFax:
    
    +49 69 2690 2319Attention:
    
    Dirk Huebner/Corporate ClientsBNP PARIBAS S.A.Address:
    
    Grüneburgweg 14
60322 Frankfurt am MainFax:
    
    +49 69 7193 6050/1519Attention:
    
    Wolfgang Schröter/Torsten MüllerCOMMERZBANK AKTIENGESELLSCHAFTAddress:
    
    Mainzer Landstrasse 153
60327 Frankfurt am MainFax:
    
    +49 69 136 5 05 09Attention:
    
    Stefan ScherffJ.P. MORGAN PLCAddress:
    
    125 London Wall
London EC2Y 5AJFax:
    
    +44 207 777 4821Attention:
    
    Heather Russell




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120 SUMITOMO MITSUI BANKING CORPORATIONAddress:
    
    Prinzenallee 7
40549 DüsseldorfFax:
    
    +49 211 3619 127Attention:
    
    Harald Wimmer




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121 THE OFFER GUARANTORDEUTSCHE BANK AG PARIS BRANCHAddress:
    
    3 Avenue de Friedland
75008 ParisFax:
    
    +33 1 53 75 05 90Attention:
    
    Hubert Vannier




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122 THE AGENTDEUTSCHE BANK LUXEMBOURG S.A.Address:
    
    2, boulevard Konrad Adenauer
L-1115 LuxembourgFax:
    
    +352 42122 95771Attention:
    
    International Loans & Agency Services
Franz-Josef Ewerhardy / Karlina Belhoste




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123 THE ORIGINAL LENDERSDEUTSCHE BANK LUXEMBOURG S.A.Address:
    
    2, boulevard Konrad AdenauerL-1115 LuxembourgFax:
    
    +352 42122 95771Attention:
    
    International Loans & Agency ServicesFranz-Josef Ewerhardy / Karlina BelhosteABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLANDAddress:
    
    Theodor-Heuss-Allee 8060486 Frankfurt am MainFax:
    
    +49 69 2690 2319Attention:
    
    Dirk Huebner/Corporate Clients
 BNP PARIBAS S.A. NIEDERLASSUNG FRANKFURT AM MAINAddress:
    
    Grüneburgweg 1460322 Frankfurt am MainFax:
    
    +49 69 7193 1519Attention:
    
    Torsten MüllerCOMMERZBANK AKTIENGESELLSCHAFTAddress:
    
    Mainzer Landstrasse 15360327 Frankfurt am MainFax:
    
    +49 69 136 29077Attention:
    
    Michael WeinachtJPMORGAN CHASE BANK, N.A.Address:
    
    125 London WallLondon EC2Y 5AJFax:
    
    +44 20 7492 3297/3298Attention:
    
    European Loan Operations




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124 SUMITOMO MITSUI BANKING CORPORATIONAddress:
    
    Prinzenallee 740549 DüsseldorfFax:
    
    +49 211 3619 127Attention:
    
    Harald Wimmer




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SCHEDULE 2
The Lenders




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7 SCHEDULE 3
Documents received
 (1)
    
    Copy of the articles of association (Satzung) of the Borrower;(2)
    
    recent and up-to-date certified copy of an excerpt from the competent
commercial register relating to the Borrower;(3)
    
    legal opinion from Allen & Overy LLP, legal advisors to the Borrower, as to
matters of German law on the due incorporation of, and the due execution of this
Agreement by, the Borrower and the capacity and authority of the Borrower in relation
to this Agreement and the Facility Agreement (as amended and restated hereby);(4)
    
    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 and the Facility Agreement (as amended and restated
hereby);(5)
    
    a certificate of an authorised signatory of the Borrower certifying that each
copy document specified in this Schedule 3 is correct, complete and in full force and
effect as of a date no earlier than the date of this Agreement.




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8 
 SIGNATORIES TO THE AMENDMENT AND RESTATEMENT AGREEMENT
 THE BORROWERSAP AGBy:
    
    /s/ DR. BRANDT
    
    /s/ JUNGETHE MANDATED LEAD ARRANGERSDEUTSCHE BANK AGBy:
    
    /s/ GAAB
    
    /s/ NEIDARTABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLANDBy:
    
    /s/ GRUNWALD
    
    /s/ MEISERBNP PARIBAS S.A.By:
    
    /s/ SCHRÖTER
    
    /s/ CÉBÉLIENCOMMERZBANK AKTIENGESELLSCHAFTBy:
    
    /s/ SCHERFF
    
    /s/ RICHEBÄCHERJ.P. MORGAN PLCBy:
    
    /s/ BLACKBOROUGHSUMITOMO MITSUI BANKING CORPORATIONBy:
    
    /s/ WIMMER
    
    /s/ KLEIN




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9 THE LENDERSDEUTSCHE BANK LUXEMBOURG S.A.By:
    
    /s/ BELHOSTE
    
    /s/ EWERHARDYABN AMRO BANK N.V., NIEDERLASSUNG DEUTSCHLANDBy:
    
    /s/ GRUNWALD
    
    /s/ MEISERBNP PARIBAS S.A. NIEDERLASSUNG FRANKFURT AM MAINBy:
    
    /s/ SCHRÖTER
    
    /s/ CÉBÉLIENCOMMERZBANK AKTIENGESELLSCHAFTBy:
    
    /s/ BOTHE
    
    /s/ WEINACHTJPMORGAN CHASE BANK, N.A.By:
    
    /s/ BLACKBOROUGHSUMITOMO MITSUI BANKING CORPORATIONBy:
    
    /s/ WIMMER
    
    /s/ KLEINTHE OFFER GUARANTORDEUTSCHE BANK AG PARIS BRANCHBy:
    
    /s/ DRAY
    
    /s/ VANNIERTHE AGENTDEUTSCHE BANK LUXEMBOURG S.A.By:
    
    /s/ BELHOSTE
    
    /s/ EWERHARDY