**Exhibit 10.3**

 
|        | **LIMITED LIABILITY PARTNERSHIP**                                                                                                                                                                                                                                                                       |
|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                                    |
|   | CONFORMED  COPY                                                                                                                                                                                                                                                                                         |
|   | **(Incorporating amendments made  pursuant to an amendment agreement   dated 16 May 2001, a syndication and amendment agreement dated 14 June 2001,  an amendment agreement dated 17 January 2002,  an amendment agreement dated 23 December 2002 and an amendment agreement  dated 11 February 2003)** |

 

 

EUR1,050,000,000

 

And

 

$540,000,000

 

SENIORFACILITIES AGREEMENT

dated  28April 2001

 

for

 

CORNELIAVERWALTUNGSGESELLSCHAFT MBHwithGOLDMAN SACHS INTERNATIONALasGLOBAL CO-ORDINATORandGOLDMAN SACHS INTERNATIONALBAYERISCHE HYPO-UND VEREINSBANK AGJ.P. MORGAN PLC

And

THE ROYAL BANKOF SCOTLAND PLC asJOINT LEAD ARRANGERS

 

With

 

CHASEMANHATTAN INTERNATIONAL LIMITED

acting asAgent

 

----

 

SENIORMULTICURRENCY TERM AND REVOLVING FACILITIES AGREEMENT

 

----

 

Note:                   This Agreement isentered into on the basis that it will have the benefit of and be

subject to the terms of an Intercreditor Deed.

 

----

 

**CONTENTS**

**CLAUSE**

 
| 1.     | Definitions And  Interpretation |
|--------|---------------------------------|
|   | 1.1                             | Definitions |
|   | 1.2                             | Construction |
|   | 1.3                             | Currency Symbols And  Definitions |
|   | 1.4                             | Third Party  Rights |
|   |                            |   |
| 2.     | The Facilities                  |
|   | 2.1                             | The Facilities |
|   | 2.2                             | Lenders’  And Fronting Banks’ Rights And Obligations |
|   | 2.3                             | Ancillary  Lenders’ Rights And Obligations |
|   | 2.4                             | Ancillary  Facilities |
|   |                            |   |
| 3.     | Purpose                         |
|   | 3.1                             | Purpose |
|   | 3.2                             | Monitoring |
|   |                            |   |
| 4.     | Conditions Of Utilisation       |
|   | 4.1                             | Initial Conditions  Precedent |
|   | 4.2                             | Further Conditions  Precedent |
|   | 4.3                             | Conditions  Relating To Optional Currencies And The Euro Unit |
|   | 4.4                             | Maximum  Number Of Loans, Letters Of Credit Or Bank Guarantees |
|   | 4.5                             | Order Of Drawing Of  Facilities |
|   | 4.6                             | Simultaneous  Drawdown Of Certain Facilities |
|   | 4.7                             | Drawing Of Term C  Facilities |
|   |                            |   |
| 5.     | Utilisation                     |
|   | 5.1                             | Delivery Of A  Utilisation Request |
|   | 5.2                             | Completion Of A  Utilisation Request |
|   | 5.3                             | Currency  And Amount |
|   | 5.4                             | Lenders’ And  Fronting Banks’ Participation |
|   | 5.5                             | Completion Of Letters  Of Credit |
|   | 5.6                             | Renewal  Of A Letter Of Credit Or Bank Guarantee |
|   | 5.7                             | Restrictions  On Participation In Letters Of Credit |
|   | 5.8                             | Restrictions  On Participation In Bank Guarantees |
|   |                            |   |
| 6.     | Optional Currencies             |
|   | 6.1                             | Selection  Of Currency |
|   | 6.2                             | Unavailability Of A  Currency |
|   | 6.3                             | Change Of  Currency |
|   | 6.4                             | Same  Optional Currency During Successive Interest Periods |
|   | 6.5                             | Agent’s  Calculations |
|   |                            |   |
| 7.     | Repayment                       |
|   | 7.1                             | Repayment Of  Term Disposal Facility Loans |
|   | 7.2                             | Repayment Of Term A  Facility Loans |
|   | 7.3                             | Repayment Of  Term B Dollar Facility Loans |
|   | 7.4                             | Repayment Of  Term B Euro Facility Loans |
|   | 7.5                             | Repayment Of  Term C Euro Facility Loans |
|   | 7.6                             | Repayment Of  Term C Dollar Facility Loans |

 

----

 
|   | 7.7                                                                               | Repayment Of  Revolving Facility Loans                                               |
|--------|-----------------------------------------------------------------------------------|--------------------------------------------------------------------------------------|
|   | 7.8                                                                               | Change Of  Borrower                                                                  |
|   |                                                                              |                                                                                 |
| 8.     | Borrower’s  Liabilities In Relation To Letters Of Credit And Bank Guarantees |
|   | 8.1                                                                               | Demands  Under Letters Of Credit And Bank Guarantees                                 |
|   | 8.2                                                                               | Borrowers’  Indemnity To Fronting Banks                                         |
|   | 8.3                                                                               | Borrowers’ Indemnity To  Lenders                                                |
|   | 8.4                                                                               | Preservation  Of Rights                                                              |
|   | 8.5                                                                               | Settlement  Conditional                                                              |
|   | 8.6                                                                               | Right  To Make Payments Under Letters Of Credit And Bank Guarantees                  |
|   |                                                                              |                                                                                 |
| 9.     | Prepayment And Cancellation                                                       |
|   | 9.1                                                                               | Illegality                                                                           |
|   | 9.2                                                                               | Change Of  Control                                                                   |
|   | 9.3                                                                               | Flotation Or  Sale                                                                   |
|   | 9.4                                                                               | Excess Cash  Flow                                                                    |
|   | 9.5                                                                               | Asset Disposals                                                                      |
|   | 9.6                                                                               | Insurance  Proceeds                                                                  |
|   | 9.7                                                                               | Acquisition Recovery  Proceeds                                                       |
|   | 9.8                                                                               | Application Of Prepayments                                                           |
|   | 9.9                                                                               | Prepayment Escrow Accounts                                                           |
|   | 9.10                                                                              | Voluntary  Cancellation                                                              |
|   | 9.11                                                                              | Voluntary  Prepayment Of Term Facility Loans                                         |
|   | 9.12                                                                              | Voluntary  Prepayment Of Revolving Facility Loans                                    |
|   | 9.13                                                                              | Prepayment  Premium                                                                  |
|   | 9.14                                                                              | Right  Of Repayment And Cancellation In Relation To A Single Lender Or Fronting Bank |
|   | 9.15                                                                              | Restrictions                                                                         |
|   | 9.16                                                                              | Automatic  Cancellation                                                              |
|   |                                                                              |                                                                                 |
| 10.    | Interest                                                                          |
|   | 10.1                                                                              | Calculation  Of Interest                                                             |
|   | 10.2                                                                              | Margin Ratchets                                                                      |
|   | 10.3                                                                              | Margin Changes                                                                       |
|   | 10.4                                                                              | Default Margin                                                                       |
|   | 10.5                                                                              | Payment  Of Interest                                                                 |
|   | 10.6                                                                              | Default  Interest                                                                    |
|   | 10.7                                                                              | Notification Of Rates  Of Interest                                                   |
|   |                                                                              |                                                                                 |
| 11.    | Interest Periods And Terms                                                        |
|   | 11.1                                                                              | Selection Of  Interest Periods And Terms                                             |
|   | 11.2                                                                              | Changes To Interest Periods                                                          |
|   | 11.3                                                                              | Non-Business  Days                                                                   |
|   | 11.4                                                                              | Consolidation  And Division Of Term Facility Loans                                   |
|   |                                                                              |                                                                                 |
| 12.    | Changes To The  Calculation Of Interest                                           |
|   | 12.1                                                                              | Absence  Of Quotations                                                               |
|   | 12.2                                                                              | Market  Disruption                                                                   |
|   | 12.3                                                                              | Alternative  Basis Of Interest Or Funding                                            |
|   | 12.4                                                                              | Break Costs                                                                          |
|   |                                                                              |                                                                                 |
| 13.    | Fees                                                                              |
|   | 13.1                                                                              | Commitment Fee                                                                       |
|   | 13.2                                                                              | Letter Of Credit Commission                                                          |

 

----

 
|   | 13.3                          | Bank Guarantee Commission                   |
|--------|-------------------------------|---------------------------------------------|
|   | 13.4                          | Fronting Bank  Fee                          |
|   | 13.5                          | Arrangement Fee                             |
|   | 13.6                          | Agency Fee                                  |
|   | 13.7                          | Security  Trustee Fee                       |
|   |                          |                                        |
| 14.    | Tax Gross Up And  Indemnities |
|   | 14.1                          | Definitions                                 |
|   | 14.2                          | Tax Gross-Up                                |
|   | 14.3                          | Tax Indemnity                               |
|   | 14.4                          | Tax Credit                                  |
|   | 14.5                          | Stamp Taxes                                 |
|   | 14.6                          | Value Added Tax                             |
|   |                          |                                        |
| 15.    | Increased Costs               |
|   | 15.1                          | Increased Costs                             |
|   | 15.2                          | Increased  Cost Claims                      |
|   | 15.3                          | Exceptions                                  |
|   |                          |                                        |
| 16.    | Other Indemnities             |
|   | 16.1                          | Currency  Indemnity                         |
|   | 16.2                          | Other Indemnities                           |
|   | 16.3                          | Indemnity  To The Agent                     |
|   |                          |                                        |
| 17.    | Mitigation By The Lenders     |
|   | 17.1                          | Mitigation                                  |
|   | 17.2                          | Limitation  Of Liability                    |
|   |                          |                                        |
| 18.    | Costs And Expenses            |
|   | 18.1                          | Transaction  Expenses                       |
|   | 18.2                          | Amendment Costs                             |
|   | 18.3                          | Enforcement  Costs                          |
|   |                          |                                        |
| 19.    | Guarantee And Indemnity       |
|   | 19.1                          | Guarantee And  Indemnity                    |
|   | 19.2                          | Continuing  Guarantee                       |
|   | 19.3                          | Reinstatement                               |
|   | 19.4                          | Waiver Of  Defences                         |
|   | 19.5                          | Immediate  Recourse                         |
|   | 19.6                          | Appropriations                              |
|   | 19.7                          | Deferral Of Guarantors’  Rights        |
|   | 19.8                          | Additional  Security                        |
|   | 19.9                          | Limitation On  German Obligor Guarantee     |
|   | 19.10                         | Limitation On Us  Obligor Guarantee         |
|   | 19.11                         | Limitation On  French Obligor Guarantee     |
|   | 19.12                         | Limitation On  Luxembourg Obligor           |
|   | 19.13                         | Third Party  Rights Of Hedge Counterparties |
|   |                          |                                        |
| 20.    | Representations               |
|   | 20.1                          | Signing  Representations Of The Company     |
|   | 20.2                          | Closing  Representations                    |
|   | 20.3                          | Other  Representations                      |
|   | 20.4                          | Status                                      |
|   | 20.5                          | Binding  Obligations                        |
|   | 20.6                          | Non-Conflict With  Other Obligations        |

 

----

 
|   | 20.7                     | Power And  Authority                     |
|--------|--------------------------|------------------------------------------|
|   | 20.8                     | Validity And  Admissibility In Evidence  |
|   | 20.9                     | Governing Law And  Enforcement           |
|   | 20.10                    | No  Filing Or Stamp Taxes                |
|   | 20.11                    | No Default                               |
|   | 20.12                    | No Misleading Information                |
|   | 20.13                    | Financial  Statements                    |
|   | 20.14                    | Financial  Year End                      |
|   | 20.15                    | Pari Passu  Ranking                      |
|   | 20.16                    | No Proceedings  Pending Or Threatened    |
|   | 20.17                    | Environmental  Compliance                |
|   | 20.18                    | Environmental  Claims                    |
|   | 20.19                    | Taxation                                 |
|   | 20.20                    | Security And  Financial Indebtedness     |
|   | 20.21                    | Security  Interests                      |
|   | 20.22                    | Intellectual  Property                   |
|   | 20.23                    | Good  Title To Assets                    |
|   | 20.24                    | Reports                                  |
|   | 20.25                    | Business Plan                            |
|   | 20.26                    | Budgets                                  |
|   | 20.27                    | Group Structure                          |
|   | 20.28                    | Ownership  Of Obligors                   |
|   | 20.29                    | Consents  And Approvals                  |
|   | 20.30                    | Acquisition  Documents                   |
|   | 20.31                    | Issue  Of Share Capital                  |
|   | 20.32                    | No Trading                               |
|   | 20.33                    | Pensions                                 |
|   | 20.34                    | Erisa And Multiemployer  Plans           |
|   | 20.35                    | Margin Stock                             |
|   | 20.36                    | Investment  Companies                    |
|   |                     |                                     |
| 21.    | Information Undertakings |
|   | 21.1                     | Financial Statements                     |
|   | 21.2                     | Compliance  Certificates                 |
|   | 21.3                     | Budgets                                  |
|   | 21.4                     | Requirements As  To Financial Statements |
|   | 21.5                     | Information: Miscellaneous               |
|   | 21.6                     | Notification  Of Default                 |
|   | 21.7                     | Erisa Related Information                |
|   |                     |                                     |
| 22.    | Financial Covenants      |
|   | 22.1                     | Financial  Definitions                   |
|   | 22.2                     | Financial  Condition                     |
|   | 22.3                     | Capital  Expenditure                     |
|   | 22.4                     | Financial  Testing                       |
|   | 22.5                     | Adjustments                              |
|   |                     |                                     |
| 23.    | General Undertakings     |
|   | 23.1                     | Authorisations                           |
|   | 23.2                     | Compliance  With Laws                    |
|   | 23.3                     | Negative Pledge                          |
|   | 23.4                     | Loans  And Guarantees                    |
|   | 23.5                     | Financial  Indebtedness                  |

 

----

 
|   | 23.6              | Acquisitions                                                  |
|--------|-------------------|---------------------------------------------------------------|
|   | 23.7              | Joint  Ventures And Non Wholly-Owned Subsidiaries             |
|   | 23.8              | Joint Ventures                                                |
|   | 23.9              | Dividends And Distributions                                   |
|   | 23.10             | Subordinated  Debt                                            |
|   | 23.11             | Disposals                                                     |
|   | 23.12             | Merger                                                        |
|   | 23.13             | Change Of  Business                                           |
|   | 23.14             | Insurance                                                     |
|   | 23.15             | Environmental  Compliance                                     |
|   | 23.16             | Environmental  Claims                                         |
|   | 23.17             | Taxation                                                      |
|   | 23.18             | Security                                                      |
|   | 23.19             | Pensions                                                      |
|   | 23.20             | Access                                                        |
|   | 23.21             | Preservation  Of Assets                                       |
|   | 23.22             | Intellectual Property                                         |
|   | 23.23             | Vendor  Warranties And Acquisition Closing Conditions         |
|   | 23.24             | Amendments                                                    |
|   | 23.25             | Transactions With  Related Parties                            |
|   | 23.26             | Fees  And Commissions                                         |
|   | 23.27             | Treasury  Transactions                                        |
|   | 23.28             | The Acquisition                                               |
|   | 23.29             | Hedging                                                       |
|   | 23.30             | Guarantor Group  And Security Coverage                        |
|   | 23.31             | Accounting Reference Date                                     |
|   | 23.32             | Revised  Group Structure                                      |
|   | 23.33             | Syndication                                                   |
|   | 23.34             | Federal Reserve Regulations                                   |
|   | 23.35             | Compliance  With Erisa                                        |
|   | 23.36             | Limitation  On The Lenders’ Control Over German Obligors |
|   | 23.37             | Conditions  Subsequent                                        |
|   | 23.38             | Total  Debt Relief Amount                                     |
|   | 23.39             | Debtco Exit  Date                                             |
|   | 23.40             | Payments Under  Debtco Intra-Group Loans                      |
|   |              |                                                          |
| 24.    | Events Of Default |
|   | 24.1              | Non-Payment                                                   |
|   | 24.2              | Financial  Covenants                                          |
|   | 24.3              | Other  Obligations                                            |
|   | 24.4              | Misrepresentation                                             |
|   | 24.5              | Cross Default                                                 |
|   | 24.6              | Insolvency                                                    |
|   | 24.7              | Insolvency  Proceedings                                       |
|   | 24.8              | Creditors’  Process                                      |
|   | 24.9              | Transaction  Security                                         |
|   | 24.10             | Other  Indebtedness                                           |
|   | 24.11             | Subordination  Agreements                                     |
|   | 24.12             | Unlawfulness                                                  |
|   | 24.13             | Repudiation                                                   |
|   | 24.14             | Material  Adverse Change                                      |
|   | 24.15             | Acceleration                                                  |

 

----

 
|   | 24.16                                                             | Closing Period                                          |
|--------|-------------------------------------------------------------------|---------------------------------------------------------|
|   | 24.17                                                             | Clean-Up Period                                         |
|   |                                                              |                                                    |
| 25.    | Changes To The Lenders                                            |
|   | 25.1                                                              | Assignments  And Transfers By The Lenders               |
|   | 25.2                                                              | Conditions Of  Assignment Or Transfer                   |
|   | 25.3                                                              | Assignment Or Transfer Fee                              |
|   | 25.4                                                              | Limitation  Of Responsibility Of Existing Lenders       |
|   | 25.5                                                              | Procedure  For Transfer                                 |
|   | 25.6                                                              | Sub-Participations By  Lenders                          |
|   | 25.7                                                              | Disclosure Of Information                               |
|   |                                                              |                                                    |
| 26.    | Changes To The Obligors                                           |
|   | 26.1                                                              | Assignment And  Transfers By Obligors                   |
|   | 26.2                                                              | Additional  Borrowers                                   |
|   | 26.3                                                              | Resignation  Of A Borrower                              |
|   | 26.4                                                              | Additional  Guarantors                                  |
|   | 26.5                                                              | Repetition Of  Representations                          |
|   | 26.6                                                              | Resignation Of A Guarantor                              |
|   | 26.7                                                              | Transfers On  Debtco Introduction Date                  |
|   | 26.8                                                              | Transfers On Debtco Exit  Date                          |
|   | 26.9                                                              | German  Security And Debtco Introduction Date           |
|   | 26.10                                                             | Company  Ceases To Be Party On Mgg Accession            |
|   | 26.11                                                             | Mgg Accession                                           |
|   |                                                              |                                                    |
| 27.    | Role  Of The Agent And The Arrangers And The Obligor’s Agent |
|   | 27.1                                                              | Appointment  Of The Agent                               |
|   | 27.2                                                              | Duties Of  The Agent                                    |
|   | 27.3                                                              | Role  Of The Arrangers                                  |
|   | 27.4                                                              | No  Fiduciary Duties                                    |
|   | 27.5                                                              | Business  With The Group                                |
|   | 27.6                                                              | Rights And  Discretions Of The Agent                    |
|   | 27.7                                                              | Majority Lenders’  Instructions                    |
|   | 27.8                                                              | Responsibility For  Documentation                       |
|   | 27.9                                                              | Exclusion  Of Liability                                 |
|   | 27.10                                                             | Lenders’ Indemnity To  The Agent                   |
|   | 27.11                                                             | Resignation  Of The Agent                               |
|   | 27.12                                                             | Confidentiality                                         |
|   | 27.13                                                             | Relationship With The  Lenders                          |
|   | 27.14                                                             | Credit  Appraisal By The Lenders And The Fronting Banks |
|   | 27.15                                                             | Reference Banks                                         |
|   | 27.16                                                             | Obligor’s Agent                                    |
|   | 27.17                                                             | Reliance,  Priority And Engagement Letters              |
|   |                                                              |                                                    |
| 28.    | The Lenders And The  Fronting Banks                               |
|   | 28.1                                                              | Lenders’  Indemnity                                |
|   | 28.2                                                              | Direct  Participation                                   |
|   | 28.3                                                              | Obligations Not Discharged                              |
|   | 28.4                                                              | Settlement Conditional                                  |
|   | 28.5                                                              | Exercise Of  Rights                                     |
|   | 28.6                                                              | Beneficiary  A Lender                                   |
|   |                                                              |                                                    |
| 29.    | Conduct Of  Business By The Finance Parties                       |

 

----

 
| 30.                             | Sharing Among The Lenders      |
|---------------------------------|--------------------------------|
|                            | 30.1                           | Payments  To Lenders |
|                            | 30.2                           | Redistribution Of Payments |
|                            | 30.3                           | Recovering Lender’s Rights |
|                            | 30.4                           | Reversal Of Redistribution |
|                            | 30.5                           | Exceptions |
|                            |                           |   |
| 31.                             | Payment Mechanics              |
|                            | 31.1                           | Payments  To The Agent |
|                            | 31.2                           | Distributions By The Agent |
|                            | 31.3                           | Distributions To An Obligor |
|                            | 31.4                           | Clawback |
|                            | 31.5                           | Partial  Payments |
|                            | 31.6                           | No  Set-Off By Obligors |
|                            | 31.7                           | Business Days |
|                            | 31.8                           | Currency  Of Account |
|                            | 31.9                           | Change Of Currency |
|                            |                           |   |
| 32.                             | Set-Off                        |
|                            |                           |
| 33.                             | Notices                        |
|                            | 33.1                           | Communications In Writing |
|                            | 33.2                           | Addresses |
|                            | 33.3                           | Delivery |
|                            | 33.4                           | Notification  Of Address, Fax Number And Telex Number |
|                            | 33.5                           | English  Language |
|                            |                           |   |
| 34.                             | Calculations And  Certificates |
|                            | 34.1                           | Accounts |
|                            | 34.2                           | Certificates And  Determinations |
|                            | 34.3                           | Day  Count Convention |
|                            |                           |   |
| 35.                             | Partial Invalidity             |
|                            |                           |
| 36.                             | Remedies And Waivers           |
|                            |                           |   |
| 37.                             | Amendments And Waivers         |
|                            | 37.1                           | Required  Consents |
|                            | 37.2                           | Exceptions |
|                            | 37.3                           | Amendments By Security  Trustee |
|                            | 37.4                           | Amendments By Obligor’s  Agent |
|                            | 37.5                           | Amendment To  Correct Manifest Error |
|                            |                           |   |
| 38.                             | Counterparts                   |
|                            |                           |
| 39.                             | Governing Law                  |
|                            |                           |   |
| 40.                             | Enforcement                    |
|                            | 40.1                           | Jurisdiction Of English  Courts |
|                            | 40.2                           | Service Of  Process |
|                            |                           |   |
| 41.                             | Waiver Of Jury Trial           |
|                            |                           |
| Schedule 1 THE CLOSING PARTIES  |
|                            |
| Schedule 2 CONDITIONS PRECEDENT |

 

----

 
| Schedule 3 REQUESTS                           |
|-----------------------------------------------|
|                                          |
| Schedule 4 MANDATORY COST FORMULAE            |
|                                          |
| Schedule 5 FORM OF TRANSFER CERTIFICATES      |
|                                          |
| Schedule 6 FORM OF ACCESSION LETTER           |
|                                          |
| Schedule 7 FORM OF RESIGNATION LETTER         |
|                                          |
| Schedule 8FORM OF COMPLIANCE CERTIFICATE      |
|                                          |
| Schedule 9 RESTRUCTURING PROGRAMME            |
|                                          |
| Schedule 10 TIMETABLES                        |
|                                          |
| Schedule 11 FORM OF BANK GUARANTEE            |
|                                          |
| Schedule 12 FORM OF LETTER OF CREDIT          |
|                                          |
| Schedule  13 MATERIAL COMPANIES AS AT SIGNING |
|                                          |
| Schedule 14 FORM OF AUDITOR’S REPORT     |
|                                          |
| Schedule 15 SECURITY PRINCIPLES               |
|                                          |
| Schedule 16 DISPOSAL PLAN                     |
|                                          |
| Schedule 17 CENTRAL AMERICAN ENTITIES         |

 

----

 

**THIS AGREEMENT** is dated 28 April 2001and made between:

** **

(1)                                  **CORNELIAVERWALTUNGSGESELLSCHAFT mbH** (the “**Company**”)(which is anticipated to have its name changed to Messer Griesheim Group GmbHand then to be converted into a German partnership limited by shares (GmbH& Co. KGaA) named Messer Griesheim Group GmbH & Co. KGaA on or shortlyafter the Closing Date referred to below);

 

(2)                                  **THEPERSONS**who become Borrowers pursuant to theprovisions of this Agreement;

 

(3)                                  **THEPERSONS**who become Guarantors pursuant to theprovisions of this Agreement;

 

(4)                                  **GOLDMANSACHS INTERNATIONAL** as Global Co-ordinator (the “**GlobalCo-ordinator**);

 

(5)                                  **GOLDMANSACHS INTERNATIONAL**, **BAYERISCHE HYPO-UND VEREINSBANK AG, J.P.MORGAN PLC** and **THE ROYAL BANK OF SCOTLAND PLC** as JointLead Arrangers **(**the **“Arrangers”**);

 

(6)                                  **THEPERSONS**listed in Part II of Schedule 1 (*The ClosingParties*) as lenders (the “**Original Lenders**”);

 

(7)                                  **CHASEMANHATTAN INTERNATIONAL LIMITED**as agent of theLenders (the **“Agent”**); and

 

(8)                                  **CHASEMANHATTAN INTERNATIONAL LIMITED**as security trusteefor the Finance Parties (the “**Security Trustee**”).

** **

**IT IS AGREED** as follows:

** **

**SECTION 1**

** **

**INTERPRETATION**

# ** **

# **1.**             DEFINITIONS AND INTERPRETATION

## ** **

## **1.1**                           Definitions

In thisAgreement:

 

“**AccessionLetter**” means a document substantially in the form set out inSchedule 6 (*Formof Accession Letter*).

 

“**Acquisition**”means the China Acquisition and the MGG Acquisition.

 

“**AcquisitionClosing Conditions**” means each of the conditions to closing of theAcquisition set out in clauses 3.1(f) (*Material adverse change*), 3.1(g) (*Representationsand warranties true and correct*) and 3.1(h) (*No insolvency of certain members of**the MGGGroup*) of the Business Combination Agreement.

 

“**AcquisitionDocuments**” means the Business Combination Agreement, all documentsexecuted pursuant to the Business Combination Agreement on or before theClosing Date, the Combination Documents defined therein, the Call Optiondefined therein, the Counter-Call Option defined therein, the Counter-PutOption defined therein, the Aventis Guarantee provided pursuant to exhibit 3.1(j) thereof and each other document (if any) relating to the

 

1

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transactionscontemplated in the Business Combination Agreement and identified by the Agentand the Company in writing as an Acquisition Document.

 

“**AcquisitionRecovery Proceeds**” means the proceeds of any payment made by theVendor, or the Vendor’s Affiliates (including, without limitation, AventisChina and Aventis), employees, officers or advisers under or in relation to theAcquisition Documents including (without limitation) the proceeds of anypayment in respect of a claim for breach of contract or warranty,misrepresentation or a claim under an indemnity **provided that**to the extentthat any such proceeds (or any portion thereof) relate to IndemnifiedUnconsolidated Debt or otherwise do not relate to any matter which affects oris connected with the equity value of the MGG Group they shall not be treatedas Acquisition Recovery Proceeds.  Forthe avoidance of doubt, proceeds received pursuant to section 4.14 (*Non-fulfilmentof Counter-Call*) of the Business Combination Agreement shall not betreated as Acquisition Recovery Proceeds.

 

“**AcquisitionRemedy**” means the application of Acquisition Recovery Proceedstowards:

 

(a)                                      the discharge of a liability, charge or claim made upon any memberof the Group, where the Vendor is obliged under the Acquisition Documents toindemnify or otherwise reimburse the relevant member of the Group for such aliability, charge or claim (and, for the avoidance of any doubt, this paragraphapplies to the application of amounts paid by the Vendor as a result of breachof section 5.19 (*Consolidated Debt at Year End*) of the BCA to the repaymentof Existing Indebtedness by a member of the Group); or

** **

(b)                                     reimbursing a member of the Group for monies disbursed in connectionwith discharging any liability, charge or claim referred to in paragraph (a)above; or

 

(c)                                      replacing, reinstating and/or repairing assets of the Group wherethe loss of, or damage to, such assets gave rise to a claim for breach ofcontract or warranty, misrepresentation or a claim under an indemnity under theAcquisition Documents.

 

For thepurposes of this definition, “**Group**” shall at all times include theCompany.

 

“**AdditionalBasket**” means, at any time, an amount equal to the aggregate amountof:

 

(a)                                      Available Excess Cash Flow and Deemed Available Net DisposalProceeds and Available Net Disposal Proceeds and 25% of Total Debt ReliefAmount at such time; less

 

(b)                                     the aggregate amount which has been used for acquisitions pursuantto paragraph (h) of the definition of Permitted Acquisitions and the aggregateamount which has been used in Capital Expenditure under paragraph (c)(iii) ofClause 22.3 (*Capital Expenditure*) and the aggregate amount allocated tobe funded out of the Additional Basket pursuant to the provisions of paragraph(c) of Clause 23.7 (*Joint Ventures and Non Wholly-Owned Subsidiaries*)at such time.

 

“**AdditionalBorrower**” means a company which becomes an Additional Borrower inaccordance with Clause 26 (*Changes to the Obligors*).

 

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“**AdditionalGuarantor**” means a company which becomes an Additional Guarantor inaccordance with Clause 26 (*Changes to the Obligors*).

 

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

 

“**Affiliate**”means, in relation to any person, a Subsidiary of that person or a HoldingCompany of that person or any other Subsidiary of that Holding Company or anyother person which is under common control with that person (and for thesepurposes, “**control**” has the meaning given to it in section 416 of theIncome and Corporation Taxes Act 1988 in force as at the date of thisAgreement). In addition, with respect to any Lender, the term “Affiliate” shall(for all purposes hereof other than for the purposes of Clause 15 (*IncreasedCosts*)) be deemed to include (a) any entity (whether a corporation,partnership, trust or otherwise) that is engaged in making, purchasing, holdingor otherwise investing in bank loans and similar extensions of credit in theordinary course of its business and is administered or managed by such Lenderor an Affiliate of such Lender, and (b) in the case of any Lender that is afund that invests in bank loans and similar extensions of credit, any other fundthat invests in bank loans and similar extensions of credit and is managed bythe same investment advisor as such Lender or by an Affiliate of suchinvestment advisor.

 

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

 

“**Aggregate Ancillary Commitment**” means, inrelation to an Ancillary Lender, the aggregate of its Ancillary Commitments.

 

“**AncillaryCommitment**” means, in relation to an Ancillary Lender and anAncillary Facility the maximum Base Currency Amount which that Ancillary Lenderhas agreed to make available from time to time under that Ancillary Facilityand which has been authorised as such under Clause 2.4 (*Ancillary Facilities*) to the extent thatamount is not cancelled or reduced under this Agreement or the AncillaryDocuments relating to that Ancillary Facility.

 

“**AncillaryDocument**” means each document relating to or evidencing the terms ofan Ancillary Facility.

 

“**AncillaryFacility**” means an overdraft ancillary facility made available uponrequest as described in Clause 2.4 (*Ancillary Facilities*).

 

“**AncillaryLender**” means each Lender which makes available an AncillaryFacility in accordance with Clause 2.4 (*Ancillary Facilities*).

 

“**AncillaryOutstandings**” means, at any time, in relation to an AncillaryFacility the principal amount calculated on a net basis (provided such nettingarrangements are documented on terms reasonably satisfactory to the AncillaryLender) outstanding under that Ancillary Facility.

 

“**Allianz**”means Allianz Capital Partners GmbH and/or any of its Affiliates.

 

“**Auditor’sReport**” means a report of the auditors of Newco 2 in substantiallythe form set out in Schedule 14 (*Form of Auditor’s Report*).

 

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“**AustrianGuarantee**” means the guarantee to be entered into by Messer AustriaGmbH in the agreed form.

 

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

 

“**AvailabilityPeriod**”****means:

 

(a)                                      in relation to the Term Disposal Facility the period from andincluding the date of this Agreement to and including the day falling 90 daysafter the Closing Date;

 

(b)                                     in relation to the Term A Facility, the period from and includingthe date of this Agreement to and including the day falling 90 days after theClosing Date;

 

(c)                                      in relation to the Term B Euro Facility, the period from andincluding the date of this Agreement to and including the day falling 45 daysafter the Closing Date;

 

(d)                                     in relation to the Term B Dollar Facility, the period from andincluding the date of this Agreement to and including the day falling 45 daysafter the Closing Date;

 

(e)                                      in relation to the Term C Euro Facility, the period from andincluding the date of this Agreement to and including the day falling 10Business Days after the Closing Date;

 

(f)                                        in relation to the Term C Dollar Facility, the period from andincluding the date of this Agreement to and including the day falling 10Business Days after the Closing Date; and

 

(g)                                     in relation to each Revolving Facility, the period from andincluding the date of this Agreement to and including the date falling 83Months after the Base Date.

 

If any of theabove provisions of this definition of Availability Period would operate sothat (but for this provision) any Availability Period ended on a day which isnot a Business Day, then such Availability Period shall end on the immediatelyfirst Business Day to occur after such day.

 

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

 

(a)                                      the Base Currency Amount of its participation in any outstandingLoans (and in the case of a Revolving Facility, any outstanding Letters ofCredit and Bank Guarantees under that Revolving Facility and the Base CurrencyAmount of its Aggregate Ancillary Commitments under Relevant AncillaryFacilities); and

 

(b)                                     in relation to any proposed Utilisation, the Base Currency Amount ofits participation in any Loans (and, in the case of a Revolving Facility, anyLetters of Credit and Bank Guarantees under that Revolving Facility) that aredue to be made under that Facility on or before the proposed Utilisation Date(and in the case of a Relevant Revolving Facility, the Base Currency Amount ofits Ancillary Commitment in relation to any new Ancillary Facility that is dueto be made available on or before the proposed Utilisation Date),

 

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other than, inrelation to a Revolving Facility only, that Lender’s participation in anyRevolving Facility Loans, Letters of Credit or Bank Guarantees under thatRevolving Facility that are due to be repaid, prepaid or expire on or beforethe proposed Utilisation Date and that Lender’s Ancillary Commitments underRelevant Ancillary Facilities that are due to be reduced or cancelled on orbefore the proposed Utilisation Date.”

 

“**AvailableExcess Cash Flow**” means, at any time, any Excess Cash Flow generatedafter 1 January 2001 which is not required to be applied in prepayment of theFacilities in accordance with Clause 9.4 (*Excess Cash Flow*).

 

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

 

“**AvailableNet Disposal Proceeds**” means, at any time, in respect of NetDisposal Proceeds 75% (and not 100%) of which are or have been required to beapplied in prepayment of the Facilities (other than the Term Disposal Facility)in accordance with Clause 9.5 (*Asset Disposals*), an amount equal to theaggregate of 25% of such Net Disposal Proceeds.

 

“**AventisChina**” means Aventis (China) Investment Co. Ltd.

 

“**BankGuarantee**” means a bank guarantee issued or to be issued by aFronting Bank under a Revolving Facility substantially in the form set out inSchedule 11 (*Form of Bank Guarantee*) or in such other form requested by aBorrower which is acceptable to the Agent and the relevant Fronting Bank.

 

“**BaseCurrency**” means (a) for all purposes other than in relation to theDollar Facilities and the Term Disposal Facility, euro and (b) in relation tothe Dollar Facilities and the Term Disposal Facility only, dollars.

 

“**BaseCurrency Amount**” means:

 

(a)                                      in relation to a Loan, Letter of Credit or Bank Guarantee, theamount specified in the Utilisation Request for that Loan, Letter of Credit orBank Guarantee or, if the amount requested  is not denominated inthe relevant Base Currency, that amount converted into the relevant BaseCurrency at the Agent’s Spot Rate of Exchange on the date which is:

 

(i)                       in relation toa Utilisation three Business Days before the Utilisation Date (or, if later, onthe date the Agent receives the Utilisation Request); or

 

(ii)                    in the case of arenewal or revaluation of a Letter of Credit or Bank Guarantee the date fallingtwo Business Days before its issue date or any renewal date,

 

in each caseas adjusted to reflect any repayment (other than, in relation to a TermFacility, a repayment arising from a change of currency), prepayment,consolidation or division in reduction of the Loan, Letter of Credit or, as thecase may be, Bank Guarantee; and

 

(b)                                     in relation to an Ancillary Commitment, the amount specified in thenotice delivered to the Agent by the Ancillary Lender making available thatAncillary Facility pursuant to paragraph (f) of Clause 2.4 (*Ancillary Facilities*) or, if the amountspecified is not denominated in the Base Currency, that amount converted into the

 

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Base Currency at the Agent’s Spot Rate of Exchange onthe date which is three Business Days before the commencement date for thatAncillary Facility (or, if later, the date the Agent receives the notice of theAncillary Commitment) adjusted to reflect any cancellation or reduction of thatAncillary Facility.  If no notice isdelivered pursuant to paragraph (f) of Clause 2.4 (*Ancillary Facilities*), the Base Currency Amount of theAncillary Commitment shall be calculated by reference to the amount estimatedby the Agent to be the Ancillary Commitment in accordance with paragraph (f) ofClause 2.4 (*Ancillary Facilities*).

 

“**Base Date**”means the earlier to occur of (a) the Closing Date and (b) 4 May 2001.

 

“**Bookrunners**”means those Arrangers defined as Bookrunners in the Syndication Letter.

 

“**Borrower**”means an Additional Borrower (including, for the avoidance of doubt, anyInitial Borrower which is an Additional Borrower) unless it has ceased to be aBorrower in accordance with Clause 26 (*Changes to the Obligors*).

 

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

 

(a)                                      the interest (excluding for the avoidance of doubt, Margin andMandatory Cost) which a Lender should have received for the period from the dateof receipt of all or any part of its participation in a Loan or Unpaid Sum tothe last day of the current Interest Period in respect of that Loan or UnpaidSum, had the principal amount or Unpaid Sum received been paid on the last dayof that Interest Period;

 

exceeds:

 

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

 

“**Budget**”means a budget delivered by the Obligor’s Agent to the Agent pursuant to Clause21.3 (*Budgets*)or Part I of Schedule 2 (*Conditions Precedent*).

 

“**BusinessCombination Agreement**” or “**BCA**” means the business combinationagreement dated as of 30/31 December 2000 between MIG, MGG, the Company, theVendor and Hoechst Newco 3 (as amended pursuant to amendment agreements dated 7February 2001, 9 February 2001, 5 March 2001, 20 March 2001 and 30 March 2001and any other amendment agreement in the agreed form entered into on or priorto the date of this Agreement), setting out the terms of the Acquisition,together with all schedules, exhibits and attachments to such agreement.

 

“**Business Day**”means a day (other than a Saturday or Sunday) on which banks are open forgeneral business in London and Frankfurt and:

 

(a)                                      (in relation to any date for payment or purchase of a currency otherthan euro) the principal financial centre of the country of that currency; or

 

(b)                                     (in relation to any date for payment or purchase of euro) any TARGETDay.

 

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“**BusinessPlan**” means the financial model for the period beginning on 1January 2001 and ending on 31 December 2010 including profit and loss accounts,balance sheets and cash flow projections, in agreed form, relating to the Group(for these purposes assuming completion of the Acquisition).

 

“**Change of Borrower Notice**” means a noticesubstantially in the form set out in Part III of Schedule 3 (*Requests*) given in accordance with Clause7.8 (*Change of Borrower*).

 

“**CapitalExpenditure**” has the meaning given to it in Clause 22.1 (*Financialdefinitions*).

 

“**CashCollateral**” means, in relation to any Letter of Credit or L/CProportion of a Letter of Credit or any Bank Guarantee or Guarantee Proportionof a Bank Guarantee, a deposit in an interest-bearing account or accountsreasonably acceptable to the Agent, that deposit and account to be secured infavour of, and on terms and conditions acceptable to, the Agent (actingreasonably).

 

“**CashCollateral Documents**” means any documents as the Agent may specify,to be entered into in relation to the Cash Collateral.

 

“**CashEquivalent Investments**” has the meaning given to it in Clause 22.1 (*Financialdefinitions*).

 

“**CentralAmerican Entities**” means the entities specified in Schedule 17 (*CentralAmerican Entities*).

 

“**Change ofControl**” means any one of the following:

 

(a)                                      Goldman Sachs Managed Funds and Allianz cease to own (directly orindirectly) in aggregate more than 50% of the Financial Investors Shares; or

 

(b)                                     Goldman Sachs Managed Funds cease to own (directly or indirectly) atleast 15% of the Total Shares; or

 

(c)                                      Allianz cease to own (directly or indirectly) at least 15% of theTotal Shares; or

 

(d)                                     a person (other than MIG) (together with its Affiliates) owns(directly or indirectly) more of the Total Shares than the Total Shares ownedby Allianz and Goldman Sachs Managed Funds; or

 

(e)                                      the Company does not or ceases to own (directly or indirectly) allof the issued share capital of Newco 2 (or, if converted into a KG or a KGaA,its general partner) or MGG or (during the Debtco Structure Period, Debtco).

 

For thepurpose of this definition:

 

(i)                                         “**Financial Investors Shares**” means the shares in the Companyheld by the Initial Sponsors on the Closing Date and all other shares in theCompany (and, following its conversion into a KgaA or KG, all of the shares inits general partner) issued to any of the Initial Sponsors or any of theirSuccessors (as defined in Section 21 of the Shareholders’ Agreement); and

 

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(ii)                                      “**Total Shares**” means all of the issued shares of the Companyand, following its conversion into a KgaA or KG, all of the shares in itsgeneral partner.

 

“**ChinaAcquisition**” means the acquisition by MGG and/or one or moreSubsidiaries of MGG of the ACIC Gas Interests (as defined in the BusinessCombination Agreement) and certain other assets of Aventis China from AventisChina pursuant to the terms of the Business Combination Agreement and the ChinaSPA (as defined therein).

 

“**ChinaSubordination Agreement**” means a subordination agreement in theagreed form between, among others, MGG, any other member of the MGG Group (a “**RelevantMember**”) which acquires any of the ACIC Gas Interests (as defined inthe BCA) and/or any other assets pursuant to the China Acquisition and theCompany pursuant to which the rights of the Company to make any claims againstMGG and each Relevant Member as a result of any payment made by the Companyunder the China Purchase Price Guarantee (as defined in Section 2.5 (Sale ofChina Interests) of the BCA are restricted and subordinated.

 

“**Clean-UpDate**” means the day which is three Months after the Closing Date.

 

“**Closing Date**”has the meaning ascribed to it in the Business Combination Agreement.

 

“**ClosingEvent of Default**” means any Event of Default other than any Event ofDefault under any of the following: Clause 24.3 (*Other Obligations*), Clause24.4 (*Misrepresentation*)(excluding any Event of Default arising thereunder as a result of a ClosingRepresentation being incorrect or misleading), Clause 24.5 (*Crossdefault*), Clause 24.6 (*Insolvency*), Clause 24.7 (*Insolvency proceedings*),Clause 24.8 (*Creditors’ process*), Clause 24.9 (*Transaction Security*),Clause 24.10 (*Other Indebtedness*) and Clause 24.14 (*Material adverse change*).

 

“**ClosingPeriod**” means the period beginning the moment after the MGGAcquisition is completed on the Closing Date and ending on the day falling 20Business Days after the Closing Date.

 

“**ClosingRepresentations**” means, in relation to the Obligor’s Agent and anyObligor, each of the representations set out in Clauses 20.4 (*Status*)to Clause 20.9 (*Governing law and* e*nforcement*) (inclusive but excludingparagraph (c) of Clause 20.6 (*Non-conflict with other obligations*)) andparagraph (d) of Clause 20.12 (*No misleading information*) andadditionally, in relation to the Obligor’s Agent only, Clause 20.28 (*Ownership ofObligors*), paragraphs (a) and (b) of Clause 20.30 (*AcquisitionDocuments*) and Clause 20.32 (*No Trading*).

 

“**ClosingUtilisation**” means any Utilisation which has a date falling withinthe Closing Period as its proposed Utilisation Date.

 

“**Code**”means, on any date, the United States Internal Revenue Code of 1986 (or anysuccessor legislation thereto), as amended, and the regulations promulgated andrulings issued thereunder, all as the same may be in effect at such date.

 

“**Commitment**”means a Term Disposal Facility Commitment, Term A Facility Commitment, Term BEuro Facility Commitment, Term B Dollar Facility Commitment, Term C EuroFacility Commitment, Term C Dollar Facility Commitment, Revolving Facility ICommitment or Revolving Facility II Commitment.

 

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

 

“**ConfidentialityUndertaking**” means a confidentiality undertaking in the standardform from time to time of the LMA or in any other form agreed between theObligor’s Agent and the Agent or in any other form on equivalent terms.

 

“**ConsolidatedSubsidiary**” means, in relation to any company or corporation, aSubsidiary of such company or corporation whose financial statements arerequired by IAS to be included in the consolidated annual financial statementsof that company or corporation provided that, for the purposes of thisdefinition, otherwise than in relation to the operation of Clause 22 (*FinancialCovenants*), a Subsidiary of a company or corporation shall not betreated as having ceased to be a Consolidated Subsidiary of that company orcorporation solely by reason of the fact that an intention or agreement existsto dispose of that Subsidiary within a particular time period.

 

“**ConsultantsReport**” means a report by an appropriate institution in relation tothe financial control and central cash management systems of the MGG Group asthey currently exist and advising on how improved centralised cash managementsystems should be implemented.

 

“**Core Country**”means any OECD Country.

 

“**Cost Savings**”means the cost savings in connection with the MGG Group, as identified in theBusiness Plan.

 

“**Debt ReliefAmount**” means, in relation to a Permitted Disposal of any asset(other than, for the avoidance of doubt, an asset of an UnconsolidatedSubsidiary of MGG or any shares in an Unconsolidated Subsidiary of MGG), theamount by which Indebtedness for Borrowed Money of the MGG Group (withoutdouble counting) is reduced as a result of such disposal of such asset by amember of the MGG Group by reason of the purchaser of the asset acquiring suchasset subject to (or together with) such Indebtedness for Borrowed Money.

 

“**Debtco**”means a company incorporated in Germany as a GmbH which has (or will have) asits sole shareholder Newco 2 and which is intended to become the soleshareholder of MGG and accede to this Agreement as a Borrower if twelve Monthsafter the date of this Agreement the High Yield Notes have not been issued andthere might reasonably be expected to be adverse German Tax implications inhaving MGG (rather than Debtco) as the German Group Member which is a Borrower.

 

“**Debtco ExitDate**” means the date the Agent (after consultation with theObligor’s Agent) confirms to the Obligor’s Agent and the Lenders as the DebtcoExit Date for the purpose of the Finance Documents (and in particular Clause26.8 (*Transferson Debtco Exit Date*)) **provided that** the Agent may not notify suchParties of such date unless the following have been satisfied:

 

(a)                                      each of the Initial German Borrowers have become Borrowers inaccordance with Clause 26.2 (*Additional Borrowers*);

 

(b)                                     the Agent has received a Debtco Exit Transfer Certificate executedby Debtco and each Initial German Borrower in form and substance satisfactoryto it;

 

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(c)                                      the Agent has received evidence satisfactory to it (actingreasonably) that on the Debtco Exit Date:

 

(i)                       Newco 2 willbecome the sole shareholder of MGG (subject only to completion of formalitiesin relation to registration of the transfer, it being acknowledged that suchformalities will be so far as practicable pre-approved by the relevant GermanCourt) and upon Debtco ceasing to be the shareholder of MGG the shares in MGGwill be or will remain pledged pursuant to a Security Document entered into byNewco 2;

 

(ii)                    MGG will assumethe rights and obligations of Debtco under (1) any Subordination Agreementalready entered into; (2) any Newco 2 Loan Agreement already entered into; (3)any High Yield Proceeds Loan Agreement already entered into; and (4) anyExchange Notes Loan already entered into; and

 

(iii)                 all rights whichDebtco has against any member of the Newco 2 Group will be unconditionallyreleased and discharged.

 

“**Debtco ExitTransfer Certificate**” means a certificate executed by Debtco andeach Initial German Borrower and the Agent in substantially the form set out inPart III (*DebtcoExit Transfer Certificate*) of Schedule 5.

 

“**DebtcoIntroduction Date**” means the date the Agent (following a request todo so by the Obligor’s Agent) confirms to the Obligor’s Agent and the Lendersas the Debtco Introduction Date for the purpose of the Finance Documents (and,in particular, for the purposes of Clause 26.7 (*Transfers on Debtco Introduction Date*))which shall be a date falling within 10 Business Days of the date of the noticegiven by the Agent pursuant to paragraph (c) of Clause 26.2 (*AdditionalBorrowers*) in relation to Debtco’s accession as a Borrower.

 

“**DebtcoPermitted Distributions**” means each of the following:

 

(a)                                      dividends paid by Debtco to Newco 2;

 

(b)                                     payments of any amounts by Debtco to Newco 2 in respect of anyindebtedness under any Newco 2 Loan Agreement; and

 

(c)                                      loans made by Debtco to Newco 2,

** **

**provided that**atthe time any such dividend or payment is paid or loan is advanced to Newco 2all of the following conditions are satisfied:

 

(A)                                  at least EUR250,000,000 (or its equivalent) of the Term Facilities havebeen permanently repaid;

 

(B)                                    there is no Default which is continuing; and

 

(C)                                    the amount of any such dividend, payment or loan when aggregatedwith all other dividends, payments or loans referred to in (a), (b) and (c)above made in the calendar year in which such dividend, payment or loan isproposed to be made would not exceed EUR7,500,000 or its equivalent.

 

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“**DebtcoStructure Period**” means the period (if any) from the DebtcoIntroduction Date until the earlier of (1) the Debtco Exit Date and (2) thedate on which no obligations are outstanding under this Agreement.

 

“**DeemedAvailable Net Disposal Proceeds**” means, at any time, an amount equalto 25% of the aggregate amount of Net Disposal Proceeds arising from disposalsmade after the Closing Date which are required to be applied in prepayment ofthe Term Disposal Facility in accordance with Clause 9.5 (*Asset Disposals*).

 

“**Default**”means an Event of Default or any event or circumstance specified in Clause 24 (*Events ofDefault*) which would (with the expiry of a grace period or thegiving of notice under the Finance Documents or any combination of any of theforegoing) be an Event of Default.

 

“**DirectMezzanine Refinancing**” means any form of debt financing pursuant towhich MGG is provided debt financing which satisfies the following conditions:

 

(a)                                      such debt financing does not contain any covenants, undertakings orrepresentations on the part of any member of the MGG Group which are any moreonerous than those contained in the Mezzanine Facility Agreement and does notcontain any events of default (however described) or other accelerationprovisions which are any more favourable to the Direct Mezzanine RefinancingProviders than those set out in the Mezzanine Facility Agreement;

 

(b)                                     the cash pay interest rate applicable at any time to  such debt financing is not greater than 14%per annum;

 

(c)                                      the principal amount of such debt financing does not mature until atleast the Final Maturity Date (as defined in the Mezzanine Facility Agreement)and no amount of principal is scheduled to be paid thereunder before the FinalMaturity Date (as defined in the Mezzanine Facility Agreement);

 

(d)                                     if secured and/or guaranteed, such debt financing is only secured and/orguaranteed by the same Security (or less) as secured by the SecurityDocuments  and by the same entities asthe Guarantors (or certain of the Guarantors only) and, in the case of anysecurity, securing such debt financing does not adversely affect the Securityprovided to the Finance Parties and ranks behind such Security provided to theFinance Parties;

 

(e)                                      the principal amount of such debt financing is at no time greaterthan the total amount outstanding under the Mezzanine Facility Agreement at thetime the first advances are made under such Direct Mezzanine Refinancing pluscosts directly attributable to the refinancing;

 

(f)                                        the net proceeds of such debt financing are immediately used toprepay in full the total amount outstanding under the Mezzanine FacilityAgreement at the time such net proceeds are advanced; and

 

(g)                                     the Direct Mezzanine Refinancing Providers have entered into anintercreditor agreement prior to any such debt financing being advanced to MGGwith all of the persons which are at such time party to the Intercreditor Deed(other than the

 

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Mezzanine Finance Parties), such intercreditoragreement (the “**Direct Mezzanine Refinancing Intercreditor Agreement**”) (whichmay take the form of an amendment to the Intercreditor Deed as in effect at therelevant date) to be on terms no less favourable to the Finance Parties thanthe Intercreditor Deed (and the Finance Parties shall not unreasonably refuseto enter into such an intercreditor agreement or to agree to correspondingamendments to the Intercreditor Deed as in effect at the relevant date).

 

“**DirectMezzanine Refinancing Intercreditor Agreement**” has the meaning givento it in the definition of Direct Mezzanine Refinancing.

 

“**Direct MezzanineRefinancing Facility**” means a facility providing Direct MezzanineRefinancing.

 

“**DirectMezzanine Refinancing Providers**” means the providers of any DirectMezzanine Refinancing including any agent or trustee for such providers.

 

“**DisposalPlan**” means the disposal programme pursuant to which it is intendedthat the shares in certain members of the MGG Group, certain UnconsolidatedSubsidiaries of MGG (as specified in Schedule 16 (*Disposal Plan*)) and/or thewhole or substantially the whole of the assets of such companies and certainminority interests and assets (as specified in Schedule 16 (*DisposalPlan*)) of the MGG Group and such Unconsolidated Subsidiaries of MGGwill be sold after the Closing Date.

 

“**DollarFacilities**” means the Term B Dollar Facility and the Term C DollarFacility.

 

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

 

“**EmployeePlan**” means an employee pension benefit plan (other than a MultiemployerPlan) subject to the provisions of Title IV of ERISA or Section 412 of the Codeor Section 302 of ERISA, and in respect of which a US Group Member or any ERISAAffiliate is (or, if such plan were terminated, would under Section 4069 ofERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

“**EnvironmentalClaim**” means any written claim or any proceeding or investigation byany person in respect of any Environmental Law.

 

“**EnvironmentalLaw**” means any applicable law in any jurisdiction in which anymember of the Group conducts business which relates to the pollution orprotection of the environment or harm to or the protection of human health orthe health of animals or plants.

 

“**EnvironmentalPermits**” means any permit, licence, consent, approval and otherauthorisation and the filing of any notification, report or assessment requiredunder any Environmental Law for the operation of the business of any member ofthe Group conducted on or from the properties owned or used by the relevantmember of the Group.

 

“**ERISA**”means, at any date, the US Employee Retirement Income Security Act of 1974, orany successor legislation thereto (as amended) and the regulations promulgatedand rulings issued thereunder, all as the same shall be in effect at such date.

 

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“**ERISAAffiliate**” means any person that for purposes of Title I and TitleIV of ERISA and Section 412 of the Code is a member of a US Group Member’scontrolled group, or under common control with a US Group Member, within themeaning of Section 414(b), (c), (m) or (o) of the Code.

 

“**ERISA Event**” means:

(a)                                      any reportable event, as defined in Section 4043of ERISA, with respect to an Employee Plan, as to which PBGC has not byregulation waived the requirement of Section 4043(a) of ERISA that it benotified within thirty days of the occurrence of such event (**providedthat**a failure to meet the minimum funding standard of Section 412of the Code or Section 302 of ERISA shall be a reportable event for thepurposes of this paragraph (a) regardless of the issuance of any waivers inaccordance with Section 412(d) of the Code);

 

(b)                                     the filing under Section 4041(c) ofERISA of a notice of intent to terminate any Employee Plan or the terminationof any Employee Plan under Section 4041(c) of ERISA;

 

(c)                                      the institution of proceedings underSection 4042 of ERISA by the PBGC for the termination of, or the appointment ofa trustee to administer, any Employee Plan; and

 

(d)                                     an engagement in a non-exemptprohibited transaction within the meaning of Section 4795 of the Code orSection 406 of ERISA which upon the occurrence of any of the events describedin paragraphs (a) to (c) (inclusive) above could reasonably be expected to havea Material Adverse Effect.

 

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

 

(a)                                      the applicable Screen Rate; or

 

(b)                                     (if no Screen Rate is available for the period of that Loan) thearithmetic mean of the rates (rounded upwards to four decimal places) assupplied to the Agent at its request quoted by the Reference Banks to leadingbanks in the European interbank market,

 

as of theSpecified Time on the Quotation Day for the offering of deposits in euro for aperiod comparable to the Interest Period of the relevant Loan and for thesepurposes in respect of the drawing of a Loan to be advanced on the Closing DateEURIBOR for the first Interest Period of such Loan shall be determined byreference to paragraph (b) and in respect of the first Interest Period for theDeemed Loan referred to in paragraph (d) of Clause 9.11 (*Voluntary prepayment of Term FacilityLoans*) EURIBOR shall be determined in accordance with the provisionsof such paragraph (d).

 

“**EuroFacilities**” means the Term B Euro Facility and the Term C EuroFacility.

 

“**EuroFacility Loan**” means a loan made or to be made under a Euro Facilityor the principal amount outstanding for the time being of that loan.

 

“**Excess CashFlow**” has the meaning given to it in Clause 22.1 (*FinancialDefinitions*).

 

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“**Event ofDefault**” means any event or circumstance specified as such inClause 24 (*Events of Default*).

 

“**ExchangeNotes**” means any notes (other than High Yield Notes) issued by Newco2 or, subject to the proviso at the end of this definition, any other personwhich satisfy the following conditions:

 

(a)                                      any such note is issued by Newco 2 or such other person to aMezzanine Lender in exchange for that Mezzanine Lender releasing all or any ofits claims to repayment of Mezzanine Outstandings (and cash and non-cashinterest relating thereto) under the Mezzanine Facility Agreement in accordancewith Clause 2.4 (*Exchange Notes*) of the Mezzanine Facility Agreement;

 

(b)                                     such notes are unsecured and are not guaranteed by any member of theNewco 2 Group save that such notes may be secured by Permitted Exchange NotesSecurity;

 

(c)                                      the cash interest contracted to be paid on such notes does notexceed 14% per annum at any time;

 

(d)                                     such notes do not mature before the Final Maturity Date (as definedin the Mezzanine Facility Agreement) and no amount of principal is scheduled tobe paid thereunder before the Final Maturity Date (as defined in the MezzanineFacility Agreement);

 

(e)                                      the terms of the Intra-Group Loan between Newco 2 (or such otherperson issuing the notes) as lender and MGG (or, as the case may be, Debtco) asborrower arising in connection with the issue of any Exchange Notes by Newco 2(or such other person) as specified in paragraph (a) above (the “**ExchangeNotes Loan**”) are immediately governed by an Exchange Notes LoanAgreement which is subordinated pursuant to the terms of an Exchange NotesSubordination Agreement;

 

(f)                                        any such notes are otherwise on terms and conditions which aresubstantially consistent with the terms and conditions for such notes as setout in Schedule 15 of the Mezzanine Facility Agreement and are otherwise onterms and conditions which are no more onerous for the issuer of such note thanthe terms of the Mezzanine Facility Agreement are for MGG (or, as the case maybe, Debtco),

** **

**provided that**ifthe issuer of any Exchange Notes is to be a person other than Newco 2 then thewritten consent of the Majority Lenders must be obtained prior to such personissuing any Exchange Notes, such consent not to be unreasonably withheld and(for the avoidance of doubt) such consent may be given subject to any changesto the provisions of this Agreement or any other Finance Document which aredesigned to provide the Finance Parties with similar protections in relation tothe consequences of the issue of any such Exchange Notes as are at that timecontained in such Finance Documents in relation to Newco 2 being the proposedissuer of any Exchange Notes.

 

“**ExchangeNotes Documents**” means the Exchange Notes, any indentures and registrationrights agreement relating to the Exchange Notes, any permitted guaranteesprovided in connection therewith, any Permitted Exchange Notes Security and anyfee letters, indemnity letters, purchase agreements, refinancing and engagementletter relating to the Exchange Notes and all other documents relating to theissue of the Exchange Notes.

 

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“**ExchangeNotes Loan**” has the meaning ascribed to it in the definition ofExchange Notes.

 

“**Exchange NotesLoan Agreement**” means a loan agreement in the form set out inschedule 1 to the Exchange Notes Subordination Agreement between Newco 2 (or(if different) the issuer of the Exchange Notes) as lender and MGG (or, on thecase may be, Debtco) as borrower which governs the terms of any Exchange NotesLoan.

 

“**ExchangeNotes Subordination Agreement**” means a subordination agreement inthe agreed form between MGG (or, as the case may be, Debtco) and Newco 2(or (if different) the issuer of the Exchange Notes) relating to thesubordination of any Exchange Notes Loan to the Outstandings, the MezzanineOutstandings and amounts outstanding under the Hedging Agreements in respect ofthe authorisation and execution of such subordination agreement the Agent hasreceived a legal opinion from its German counsel in form and substanceacceptable to it (acting reasonably).

 

“**ExistingFactoring Programme**” means the factoring programme in place as atthe Closing Date made between MGG, Eureka Securitisation PLC and Citibank, N.A.and entered into on 2/4 December 1998.

** **

**“Existing Indebtedness**” means the Financial Indebtedness of the MGG Group outstanding onthe Closing Date or outstanding under overdraft facilities in existence on theClosing Date as such overdraft facilities are renewed from time to time,provided that the aggregate amount of Financial Indebtedness outstanding underall overdraft facilities falling within this definition shall not exceedEUR10,000,000 (or its equivalent in other currencies) at any time.

 

“**Expiry Date**”means, in relation to any Letter of Credit or Bank Guarantee, the date on whichthe maximum aggregate liability under that Letter of Credit or Bank Guaranteeis to be reduced to zero.

 

“**Facility**”means the Term Disposal Facility, the Term A Facility, the Term B EuroFacility, the Term B Dollar Facility, the Term C Euro Facility, the Term CDollar Facility, the Revolving Facility I or the Revolving Facility II.

 

“**FacilityOffice**” means the office or offices notified by a Lender or aFronting Bank to the Agent and the Obligor’s Agent in writing on or before thedate it becomes a Lender or a Fronting Bank (or, following that date, by notless than five Business Days’ written notice to the Agent and the Obligor’sAgent) as the office or offices through which it will perform its obligationsunder this Agreement and (unless otherwise subsequently notified by not lessthan five Business Days’ written notice to the Agent and the Obligor’s Agent)the Facility Office of the Lenders named on the signing pages hereto shall bethe office or offices specified after their names on the signature pageshereto.

 

“**Family MGGShares**” means the shares representing one third of the nominal valueof the issued share capital of MGG, held by MIG at the date of this Agreement.

 

“**Fee Letter**”means any letter or letters dated on or about the date of this Agreementbetween certain of the Arrangers and MGG (or the Agent or the Security Trusteeand MGG, as the case may be) setting out any of the fees referred to in Clause13 (*Fees)*and any letter or letters between any Fronting Bank and the Obligor’s Agentsetting out any of the fees referred to in 

 

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Clause 13.4 (*FrontingBank Fee*) and any other agreement setting out fees referred to inClause 2.4(m) in respect of an Ancillary Facility.

 

“**FinalMaturity Date**” means the day which is 108 Months after the BaseDate.

 

“**FinanceDisclosure Letter**” means the letter (if any) from the Company to theAgent dated prior to the Closing Date headed “Finance Disclosure Letter” in theagreed form and initialled by each Arranger for the purposes of identificationpursuant to which certain specific issues are disclosed against specificrepresentations.

 

“**FinanceDocument**” means this Agreement, any Fee Letter, the SyndicationLetter, each Letter of Credit, each Bank Guarantee, any Ancillary Document, anyCash Collateral Document, any Accession Letter, the Austrian Guarantee, theSecurity Documents, the Intercreditor Deed, any Subordination Agreement, the HedgingAgreements, any Priority Letter, any Transfer Certificate, the Debtco ExitTransfer Certificate, and any other document designated as such by the Agentand the Obligor’s Agent.

 

“**FinanceParty**” means the Agent, the Security Trustee, an Arranger, a FrontingBank, a Hedge Counterparty or a Lender (including, for the avoidance of doubt,and Ancillary Lender).

 

“**FinanceLease**” means a contract treated as a finance or capital lease inaccordance with IAS.

 

“**FinancialIndebtedness**” means any indebtedness for or in respect of any of thefollowing:

 

(a)                                      moneys borrowed;

 

(b)                                     any amount raised by acceptance under any acceptance creditfacility;

 

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

 

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

 

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

 

(f)                                        any amount raised under any other transaction (including any forwardsale or purchase agreement) having the commercial effect of a borrowingincluding (for the avoidance of doubt and without limitation) any amount raisedby any member of the MGG Group pursuant to a Permitted Factoring Programme;

 

(g)                                     any derivative transaction entered into in connection withprotection against or benefit from fluctuation in any rate or price (and, whencalculating the value of any derivative transaction, only the marked to marketvalue shall be taken into account);

 

(h)                                     any counter-indemnity obligation in respect of a guarantee,indemnity, bond, standby or documentary letter of credit or any otherinstrument issued by a bank or financial institution other than in the ordinarycourse of trade of any member of the MGG Group;

 

(i)                                         (without double counting) the amount of any liability in respect ofany guarantee or indemnity for any of the items referred to in paragraphs (a)to (h) above.

 

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“**FinancialQuarter**” has the meaning given to it in Clause 22.1 (*FinancialDefinitions*).

 

“**Flotation**”means a listing of all or any part of the share capital of (a) MGG, (b) anyHolding Company of MGG which is in the Group or (c) any member of the MGG Groupwhich directly or indirectly owns all or substantially all of the shares orassets of the MGG Group, in each case on any recognised investment orsecurities exchange in any country.

 

“**FrenchGuarantor**” means a Guarantor whose Relevant Jurisdiction is France.

 

“**FrontingBank**” means a Lender which has notified the Agent that it has agreedto the relevant Borrower’s request to be a fronting bank for a particular BankGuarantee or Letter of Credit pursuant to the terms of this Agreement.

 

“**Funds FlowStatement**” means the statement, in the agreed form, prepared by theCompany’s advisors showing the payments to be made and received by theInvestors, the Company and certain other members of the Group and the Vendor(and any of the Vendor’s Affiliates) in relation to the Acquisition.

 

“**German GroupMember**” means any member of the Newco 2 Group whose RelevantJurisdiction is the Federal Republic of Germany.

 

“**GermanObligor**” means a German Group Member who is an Obligor.

 

“**GoldmanSachs Managed Funds**” means GS Capital Partners 2000, L.P., GSCapital Partners 2000 Employee Fund, L.P., GS Capital Partners 2000 Offshore,L.P., GS Capital Partners 2000 GmbH & Co. Beteiligungs KG, Stone StreetFund 2000, L.P. and Bridge Street Special Opportunities Fund 2000, L.P.together with all funds managed, advised or operated by any Affiliate of TheGoldman Sachs Group, Inc.

 

“**Group**”means, at any time, the Company and its Consolidated Subsidiaries at that timesave that if at any time after the Closing Date Newco 2 ceases to be aSubsidiary of the Company, the “Group” shall, until such time as Newco 2becomes a Subsidiary of the Company again, be the Newco 2 Group.

 

“**GroupStructure Chart**” means a group structure chart, in agreed form,showing:

 

(a)                                      all members of the Group (assuming completion of the Acquisition)and the Investors;

 

(b)                                     any person in which any Group member has (or members of the Grouptogether have) an interest of more than 20% in the issued share capital orequivalent ownership interest of such person;

 

(c)                                      the jurisdiction of incorporation or establishment of each personwithin (a) and (b) above (other than the Investors); and

 

(d)                                     that all members of the Group are wholly-owned Subsidiaries of theCompany or, if any members of the Group are not wholly-owned Subsidiaries ofthe Company, specifying the percentage shareholding or other economic interestwhich the Company (directly or indirectly) holds in such members of the Group.

 

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“**GuaranteeAmount**” means:

 

(a)                                      each sum paid or due and payable by a Fronting Bank to thebeneficiary of a Bank Guarantee pursuant to the terms of that Bank Guarantee;and

 

(b)                                     all liabilities, costs (including, without limitation, any costsincurred in funding any amount which falls due from a Fronting Bank under aBank Guarantee), claims, losses and expenses which that Fronting Bank incurs orsustains in connection with a Bank Guarantee,

 

in each casewhich has not been reimbursed pursuant to Clause 8.2 (*Borrower’s indemnity to Fronting Banks*).

 

“**GuaranteeCommission Period**” means, save as otherwise provided in thisAgreement, any of those periods mentioned in Clause 13.3 (*Bank Guarantee* c*ommission*).

 

“**GuaranteeCommission Rate**” means, from time to time, a guarantee commissionequal to the Margin applicable to Revolving Facility Loans at that time.

 

“**GuaranteeProportion**” means, in respect of any Bank Guarantee under anyRevolving Facility and save as otherwise provided in this Agreement, theproportion (expressed as a percentage) borne by a Lender’s Available Commitmentin respect of that Revolving Facility to the Available Facility in respect ofthat Revolving Facility immediately prior to the issue of that Bank Guarantee.

 

“**Guarantor**”means an Additional Guarantor (including, for the avoidance of any doubt, anyInitial Guarantor which is an Additional Guarantor), unless it has ceased to bea Guarantor in accordance with Clause 26 (*Changes to the Obligors*).

 

“**HedgeCounterparty**” means a Lender or an Affiliate of a Lender or anyother person which in each case is either a party to the Intercreditor Deed orhas acceded to the Intercreditor Deed in accordance with its terms as a HedgeCounterparty.

 

“**HedgingAgreements**” means each of the agreements entered into or to beentered into between the Borrowers approved by the Agent and Hedge Counterpartiesfor the purpose of hedging interest rate liabilities in accordance with Clause23.29 (*Hedging*)or Clause 21.29 of the Mezzanine Facility Agreement.

 

“**HedgingLetter**” means the letter dated on or about the date of thisAgreement from MGG to the Arrangers and the Mezzanine Arrangers, setting outthe interest rate hedging requirements to be implemented by the MGG Group.

 

“**High YieldDocuments**” means the High Yield Notes, any indentures andregistration rights agreement relating to the High Yield Notes, any permittedguarantees provided in connection therewith, any Permitted High Yield Security,any future paid-in-kind notes contemplated by such indentures and registrationrights agreement and any fee letters, indemnity letters, purchase agreements, refinancingand engagement letter relating to the High Yield Notes and all other documentsrelating to the issue of the High Yield Notes.

 

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“**High YieldNotes**” means any notes (other than Exchange Notes) issued by Newco 2or, subject to the proviso at the end of this definition, any other personwhich either:

 

(a)                                      satisfy the following conditions:

 

(i)                       the aggregategross proceeds of such notes do not exceed the total amount outstanding underthe Mezzanine Facility Agreement at the time such gross proceeds are advanced(or its equivalent in other currencies);

 

(ii)                    such notes areunsecured and are not guaranteed by any member of the Newco 2 Group save thatsuch notes may be secured by the Permitted High Yield Security;

 

(iii)                 the cash interestcontracted to be paid on such notes does not exceed 15% per annum;

 

(iv)                such notes do notmature before the Final Maturity Date (as defined in the Mezzanine FacilityAgreement) and no amount of principal is scheduled to be paid thereunder beforethe Final Maturity Date (as defined in the Mezzanine Facility Agreement);

 

(v)                   the gross proceedsof such notes are immediately either (1) used to make a High Yield ProceedsLoan (which is subject to the terms of the High Yield Subordination Agreement)and prepay in full the total amount outstanding under the Mezzanine FacilityAgreement at the time such gross proceeds are advanced or (2) are held in anescrow account with the bond trustee of the indenture relating to such High YieldNotes or another appropriate third party on terms that such proceeds are eitherreleased to Newco 2 upon confirmation from the relevant German court that theregistration of the share capital increase of Newco 2 has been effected so thatthe contribution of the Family MGG Shares to Newco 2 is effective (and are thenapplied by Newco 2 immediately to repay the Mezzanine Facility Agreement in themanner set out in sub-paragraph (1) of this paragraph (v)) or are repaid to theholders of the High Yield Notes if such confirmation is not received within 120days of the proceeds being paid into such escrow account; or

 

(b)                                     are on terms and conditions which have been approved in writing bythe Majority Lenders (acting reasonably and having regard to the then currentmarket practice (if any) in the high yield bond market for the financing ofleveraged acquisitions in Europe); or

 

(c)                                      are notes which are issued in exchange, renewal or replacement orextension of any of the notes which satisfy the provisions of paragraph (a) or(b) above for the same or smaller amount,

** **

**provided that**:

 

(A)                                  if the issuer of any High Yield Notes is to be a person other thanNewco 2 then the written consent of the Majority Lenders must be obtained priorto such person issuing any High Yield Notes, such consent not to beunreasonably withheld and (for the

 

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avoidance of doubt) such consent may be given subjectto any changes to the provisions of this Agreement or any other Finance Documentwhich are designed to provide the Finance Parties with similar protections inrelation to the consequences of the issue of any such High Yield Notes as areat that time contained in such Finance Documents in relation to Newco 2 beingthe proposed issuer of any High Yield Notes; and

 

(B)                                    the aggregate gross proceeds of such notes may exceed the amountspecified in (a)(i) above by EUR 150,000,000 (the “**Additional Amount**”) if suchAdditional Amount is immediately used to make a High Yield Proceeds Loan (whichis subject to the terms of the High Yield Subordination Agreement) andEUR 115,000,000 of such Additional Amount used to make such High YieldProceeds Loan is immediately used to prepay the Facilities in the mannerspecified in paragraph (d) of Clause 9.11 (*Voluntary prepayment of Term Facility Loans*).

 

“**High YieldProceeds Loan**” means any loan of the proceeds from the issue of theHigh Yield Notes, to be made by Newco 2 to MGG, in each case pursuant to a HighYield Proceeds Loan Agreement and is subordinated pursuant to the terms of aHigh Yield Subordination Agreement.

 

“**High YieldProceeds Loan Agreement**” means a loan agreement substantially in theform set out in schedule 1 of the High Yield Subordination Agreement betweenNewco 2 as lender and MGG as borrower pursuant to which any High Yield ProceedsLoan is to be made.

 

“**High YieldSubordination Agreement**” means a subordination agreementsubstantially in the agreed form between MGG and Newco 2 relating to the subordination of any High Yield ProceedsLoan to the Outstandings and amounts outstanding under the Hedging Agreementsin respect of the authorisation and execution of such subordination agreementthe Agent has received a legal opinion from its German counsel in form andsubstance acceptable to it (acting reasonably).

 

“**HoechstNewco 2 Receivable**” means the loan deemed to be made by the Vendorto Newco 2 in the amount of EUR200,000,000 pursuant to the terms of section 2.4of the BCA (and defined therein as the Hoechst Newco 2 Receivable) which loanconstitutes part of the consideration received by the Vendor for itcontributing the Vendor MGG Shares to Newco 2, with the Vendor’s rights inrelation to such loan to be transferred and assigned to the Company pursuant toan assignment contract substantially as set forth in Exhibit 2.7(b) of the BCAon the Closing Date in accordance with section 2.7(b) of the BCA.

 

“**HoechstNewco 3**” means DIOGENES Zwanzigste Vermögensverwaltungs GmbH, beinga newly incorporated German limited liability company registered with thecommercial register of Frankfurt am Main under HR B 48032 which:

 

(a)                                      is a wholly-owned Subsidiary of Hoechst Aktiengesellschaft;

 

(b)                                     pursuant to a restructuring to be carried out by the Vendor prior tothe Closing Date, will be the sole shareholder of Newco 2; and

 

(c)                                      pursuant to the terms of the Business Combination Agreement, willsell the entire issued share capital of Newco 2 to the Company.

 

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

 

“**HoldingOperating Companies**” means Air Gas Production Limited, MesserCryotherm GmbH & Co. KG, Buse Gas Dettmannsdorf GmbH and SauerstoffvertriebWilhelm Geldbach GmbH & Co. KG.

 

“**IAS**”means International Accounting Standards in effect from time to time.

 

“**Indebtednessfor Borrowed Money**” means Financial Indebtedness save for anyindebtedness for or in respect of paragraphs (g) and (h) of the definition of “**FinancialIndebtedness**”.

 

“**IndemnifiedUnconsolidated Debt**” means, at any time, the aggregate amount ofUnconsolidated Debt to the extent to which the member of the MGG Groupproviding the Unconsolidated Debt is fully indemnified at such time by theVendor and/or Aventis either pursuant to the provisions of section 11.1 (*HoechstUndertakings*) and/or section 11.2 (*Aventis Guarantee*) of theSingapore Separation Agreement or pursuant to any other agreement acceptable tothe Majority Lenders (acting reasonably).

 

“**InformationMemorandum**” means the information memorandum concerning the Companyand the MGG Group which, at the Company’s and/or MGG’s request and on its/theirbehalf, is to be prepared in relation to this transaction, agreed between theBookrunners and MGG, approved by the Company and/or MGG and distributed by theBookrunners prior to the last Syndication Date to selected financialinstitutions in connection with the syndication of the Facilities.

 

“**InitialBorrowers**” means the members of the Group listed in Part I ofSchedule 1 (*TheClosing Parties*) as initial borrowers.

 

“**InitialGerman Borrowers**” means each of the Initial Borrowers whose RelevantJurisdiction is Germany.

 

“**InitialGuarantors**” means the members of the Group listed in Part I ofSchedule 1 (*TheClosing Parties*) as initial guarantors.

 

“**InitialMargin**”****means:

 

(a)                                      in relation to the Term Disposal Facility, 2.25 per cent. per annum;

 

(b)                                     in relation to the Term A Facility, 2.25 per cent. per annum;

 

(c)                                      in relation to the Term B Facilities, 2.75 per cent. per annum;

 

(d)                                     in relation to the Term C Facilities, 3.25 per cent. per annum; and

 

(e)                                      in relation to each Revolving Facility, 2.25 per cent. per annum.

 

“**InitialObligors**” means the Initial Borrowers and the Initial Guarantors.

 

“**Initial Sponsors**”means Allianz Capital Partners GmbH and GS Capital Partners 2000, L.P., GSCapital Partners 2000 Employee Fund, L.P., GS 

 

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CapitalPartners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH & Co BeteiligungsKG, Stone Street Fund 2000, L.P. and Bridge Street Special Opportunities Fund2000, L.P.

 

“**InsuranceProceeds**” means the cash proceeds of any insurance claim intended tocompensate for damage to any asset (but not for loss of profit) received by anymember of the Group, after deducting:

 

(a)                                      any reasonable out of pocket expenses incurred by any member of theGroup in relation to such a claim;

 

(b)                                     proceeds relating to third party claims, which are applied towardsmeeting such claims; and

 

(c)                                      Taxes paid (or reasonably estimated to be payable) in respectthereof or in respect of the remittance or transfer of all or any of suchproceeds to another member of the Group in order to enable any such proceeds tobe utilised in prepayment of outstanding Loans pursuant to the requirements ofClause 9.6 (*InsuranceProceeds*).

 

For thepurposes of this definition, the term “**Group**” shall at all times include theCompany.

 

“**IntellectualProperty**” means any and all rights and interests existing now or inthe future in any part of the world in or relating to registered andunregistered trade marks and service marks, domain names, patents, registereddesigns, utility models, trade names, business names, titles, registered orunregistered copyrights in published and unpublished works, unregistereddesigns, inventions registered or unregistered, data base rights, know-how, anyother intellectual property rights and any applications for any of theforegoing and any goodwill therein.

 

“**IntellectualProperty Rights**” means any Intellectual Property owned by any memberof the Group.

 

“**IntercreditorDeed**” means:

 

(a)                                      in relation to the Mezzanine Facility, the intercreditor deed to beentered into in the agreed form between, among others, the Obligors, theFinance Parties and the Mezzanine Finance Parties; and

 

(b)                                     in relation to any Direct Mezzanine Refinancing, the DirectMezzanine Refinancing Intercreditor Agreement.

 

“**InterestPeriod**” means, in relation to a Loan, each period determined inaccordance with Clause 11 (*Interest Periods and Terms*) and, inrelation to an Unpaid Sum, each period determined in accordance withClause 10.6 (*Default interest*).

 

“**Intra-GroupLoan**” means any loan between members of the Newco 2 Group.

 

“**Investors**”means the Initial Sponsors and MIG.

 

“**IRS**”means the United States Internal Revenue Service or any successor thereto.

 

“**JointVenture**” means any joint venture entity, whether a company,unincorporated firm, undertaking, association, joint venture or partnership orany other entity, but in any event an

 

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entity willnot be a Joint Venture in relation to any member of the MGG Group if thatentity is a member of the MGG Group or is an Unconsolidated Subsidiary of Newco2 and will not be a Joint Venture in relation to any member of the MGG Groupunless that member of the MGG Group has (or, together with other members of theMGG Group, have) an interest of more than 20% in the issued share capital orequivalent ownership interest of such entity.

 

“**KPMGBusiness Plan Audit**” mans the audit of the Business Plan carried outby KPMG in the agreed form.

 

“**L/C Amount**”means:

 

(a)                                      each sum paid or due and payable by a Fronting Bank to thebeneficiary of a Letter of Credit pursuant to the terms of that Letter ofCredit; and

 

(b)                                     all liabilities, costs (including, without limitation, any costsincurred in funding any amount which falls due from a Fronting Bank under aLetter of Credit), claims, losses and expenses which that Fronting Bank incursor sustains in connection with a Letter of Credit,

 

in each casewhich has not been reimbursed pursuant to Clause 8.2 (*Borrower’s indemnity to Fronting Banks*).

 

“**L/CCommission Period**”means, save as otherwise provided in this Agreement, any ofthose periods mentioned in Clause 13.2 (*Letter of Credit commission*).

 

“**L/CCommission Rate**” means, from time to time, a letter of creditcommission equal to the Margin applicable to Revolving Facility Loans at thattime.

 

“**L/CProportion**” means, in respect of any Letter of Credit under anyRevolving Facility and save as otherwise provided in this Agreement, theproportion (expressed as a percentage) borne by a Lender’s Available Commitmentin respect of that Revolving Facility to the Available Facility in respect ofthat Revolving Facility immediately prior to the issue of that Letter ofCredit.

 

“**LegalReports**” means:

 

(a)                                      the legal due diligence report, in the agreed form, on certainmembers of the MGG Group prepared by Milbank, Tweed, Hadley & McCloy;

 

(b)                                     the legal due diligence report, in the agreed form, on certainmembers of the MGG Group prepared by Hengeler Mueller Weitzel Wirtz; and

 

(c)                                      the legal due diligence report, in the agreed form, on certainmembers of the MGG Group prepared by Baker & McKenzie.

 

“**Lender**”means:

 

(a)                                      any Original Lender; and

 

(b)                                     any person which has become a Party in accordance with Clause 25 (*Changes tothe Lenders*),

 

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which in eachcase has not ceased to be a Party in accordance with the terms of thisAgreement.

 

“**Letter ofCredit**” means a letter of credit issued or to be issued by aFronting Bank under a Revolving Facility substantially in the form set out inSchedule 12 (*Form of Letter of Credit*) or in such other form requested bya Borrower which is acceptable to the Agent and the relevant Fronting Bank.

 

“**LeverageRatio**” means, in respect of any period, the ratio of Total Debt asat the last day of such period to EBITDA for that period, as determined inaccordance with the provisions of Clause 22 (*Financial Covenants*).

 

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

 

(a)                                      the applicable Screen Rate; or

 

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

 

as of theSpecified Time on the Quotation Day for the offering of deposits in thecurrency of that Loan and for a period comparable to the Interest Period forthat Loan and for these purposes in respect of the drawing of a Loan to beadvanced on the Closing Date LIBOR for the first Interest Period of such Loanshall be determined by reference to paragraph (b).

 

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

 

“**Loan**”means a Term Disposal Facility Loan, a Term A Facility Loan, a Term B EuroFacility Loan, a Term B Dollar Facility Loan, a Term C Euro Facility Loan, aTerm C Dollar Facility Loan, a Revolving Facility I Loan or a Revolving FacilityII Loan or (for the avoidance of any doubt), a Rollover Loan.

 

“**LuxembourgObligor**” means any Obligor whose Relevant Jurisdiction isLuxembourg.

 

“**MajorityLenders**” means a Lender or Lenders whose Commitments aggregate morethan 662/3% of the Total Commitments (or, if the TotalCommitments have been reduced to zero, aggregated more than 662/3%of the Total Commitments immediately prior to the reduction) (and in order tocalculate the Majority Lenders on the basis of Total Commitments at any timethe amount in dollars of all Term B Dollar Facility Commitments and all Term CDollar Facility Commitments and all Term Disposal Facility Commitments shall becalculated in euros at the Agent’s Spot Rate of Exchange on the date of thisAgreement).

 

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

 

“**Margin**”means:

 

(a)                                      in respect of all Term Disposal Facility Loans, the Initial Marginfor the Term Disposal Facility;

 

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(b)                                     in respect of all Term A Facility Loans and Revolving FacilityLoans, the percentage rate per annum determined in accordance with paragraph(a) of Clause 10.2 (*Margin Ratchets*), Clause 10.3 (*MarginChanges*) and Clause 10.4 (*Default Margin*);

 

(c)                                      in respect of all Term B Euro Facility Loans and all Term B DollarFacility Loans, the percentage rate per annum determined in accordance withparagraph (b) of Clause 10.2 (*Margin ratchets*), Clause 10.3 (*Marginchanges*) and Clause 10.4 (*Default Margin*);

 

(d)                                     in respect of all Term C Dollar Facility Loans and all Term C EuroFacility Loans, the Initial Margin for the Term C Facilities.

 

“**Margin Stock**”means margin stock or “**margin security**” within the meaning ofRegulations T, U and X.

 

“**MaterialAdverse Effect**”****means a material adverse effect on:

 

(a)                                      the business, operations, property or condition (financial orotherwise) of the Group taken as a whole;

 

(b)                                     the ability of the Obligors to perform their respective paymentobligations under the Finance Documents or the ability of the Obligor’s Agentto perform its obligations under Clause 22.2 (*Financial Condition*); or

 

(c)                                      the validity or enforceability of the Finance Documents or therights or remedies of any Finance Party under the Finance Documents in a manneror to an extent which the Majority Lenders reasonably consider to be materiallyprejudicial to the interests of any Finance Party under the Finance Documents.

 

“**MaterialCompany**” means, at any time:

 

(a)                                      a Subsidiary of Newco 2 which is listed in Schedule 13 (*MaterialCompanies as at Signing*) (**provided that**if after the Closing Date anySubsidiary listed in such Schedule would not, but for this paragraph (a), be aMaterial Company, it shall not be a Material Company); and/or

 

(b)                                     a Consolidated Subsidiary of Newco 2 which has EBITDA representing 3per cent. or more of EBITDA of the Newco 2 Group; and/or

 

(c)                                      a Consolidated Subsidiary of Newco 2 which has gross assets(excluding assets which are not included on consolidation) representing 3 percent. or more of gross assets of the Newco 2 Group; and/or

 

(d)                                     Newco 2 and each member of the Newco 2 Group which is a HoldingCompany of a Subsidiary falling within paragraph (a), (b) or (c) above,

 

in each casecalculated on a consolidated basis.

 

Whether aperson is a Material Company within the conditions set out in paragraphs (b)and (c) shall be determined by reference to the most recent ComplianceCertificate and/or Auditor’s Report supplied by the Obligor’s Agent and/or thelatest audited financial statements of that 

 

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ConsolidatedSubsidiary of Newco 2 (which statements shall, if customarily prepared orrequired by applicable law to be, be consolidated in the case of a ConsolidatedSubsidiary of Newco 2 which itself has Consolidated Subsidiaries of Newco 2)and/or the latest audited consolidated financial statements of the Newco 2Group. If a Consolidated Subsidiary of Newco 2 has been acquired since the dateas at which the latest audited consolidated financial statements of the Newco 2Group were prepared, the financial statements shall be notionally adjusted, forthe purpose of the calculation, in order to take into account the acquisitionof that Consolidated Subsidiary (that adjustment being certified by the Newco 2Group’s auditors), it being acknowledged that the auditors of Newco 2 areentitled to rely on information regarding such acquired Consolidated Subsidiaryprovided to them by the management or auditors of such acquired ConsolidatedSubsidiary for the purpose of this calculation and that if the auditors ofNewco 2 certify that on the basis of such information they are of the opinionthat the gross assets (excluding assets which are not included on consolidation)and EBITDA of such acquired Consolidated Subsidiary will be less than 3% of thegross assets and EBITDA of the Newco 2 Group the notional adjustment will notbe required for that acquired Consolidated Subsidiary.

 

A report bythe auditors of Newco 2 that a Consolidated Subsidiary of Newco 2, for thepurpose of the calculation is or is not a Material Company shall, in theabsence of manifest error, be conclusive and binding on all Parties.

 

“**MesserSingapore**” means Messer Singapore Pte. Limited, a companyincorporated in Singapore and which as at the date hereof is a directwholly-owned Subsidiary of MGG.

 

“**MezzanineAgent**” means the Mezzanine Agent (as defined in the MezzanineFacility Agreement).

 

“**MezzanineArrangers**” means Goldman Sachs International, Bayerische Hypo-undVereinsbank AG and The Royal Bank of Scotland plc.

 

“**MezzanineFacility**” means the mezzanine loan facilities made under theMezzanine Facility Agreement.

 

“**MezzanineFacility Agreement**” means the mezzanine facility agreement dated onor about the date of this Agreement and made between (among others) theCompany, the Mezzanine Agent, the Mezzanine Arrangers, the Security Trustee andthe banks and financial institutions named therein as Mezzanine Lenders,setting out the terms and conditions on which the Mezzanine Outstandings willbe made available to MGG.

 

“**MezzanineFee Letter**” means any letter or letters dated on or about the dateof the Mezzanine Facility Agreement between certain of the Mezzanine Arrangersand the Company (or the Mezzanine Agent or the Security Trustee and theCompany) setting out any of the fees referred to in clause 11 of the MezzanineFacility Agreement.

 

“**MezzanineFinance Documents**” means the Mezzanine Facility Agreement, anyguarantor or borrower accession memoranda under the Mezzanine FacilityAgreement, the Security Documents, the Intercreditor Deed, any Priority Letter,the Austrian Guarantee, any Mezzanine Fee Letter, the Mezzanine SyndicationLetter, any Transfer Certificate (as defined in the Mezzanine FacilityAgreement) other than any such Transfer Certificate to which Newco 2 is a

 

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party, and anyother document designated as such by the Mezzanine Agent and the Obligor’sAgent excluding the Exchange Notes and the Exchange Notes Loan Agreement.

 

“**MezzanineFinance Parties**” means the Mezzanine Lenders (excluding for theavoidance of doubt Newco 2), the Mezzanine Agent, the Mezzanine Arrangers andthe Security Trustee.

 

“**MezzanineLenders**” means the “**Mezzanine Lenders**” as defined in theMezzanine Facility Agreement.

 

“**MezzanineOutstandings**” means the aggregate amount outstanding at any time inrespect of principal under the Mezzanine Facility Agreement (not including, forthe avoidance of any doubt, any amounts outstanding under the Exchange NotesLoan Agreement).

 

“**MezzanineSyndication Letter**” means the “**Mezzanine Syndication Letter**” as defined inthe Mezzanine Facility Agreement.

 

“**MGG**”means Messer Griesheim GmbH, registered in the *Handelsregister*(commercialregister) of the *Amtsgericht* (local court) of Frankfurt am Main under HRB7812.

 

“**MGGAcquisition**” means the acquisition by the Company of the issuedshare capital of Newco 2 pursuant to the terms of the Business CombinationAgreement.

 

“**MGG Group**”means, at any time,  MGG and itsConsolidated Subsidiaries at that time **provided that** at any time during the DebtcoStructure Period it shall mean Debtco and its Consolidated Subsidiaries at thattime.

 

“**MGG JointVenture**” means a Joint Venture in which a member of the MGG Grouphas an interest.

 

“**MGGPermitted Distributions**” means each of the following:

 

(a)                                      dividends paid by MGG to Newco 2;

 

(b)                                     payments of any amounts by MGG to Newco 2 in respect of anyindebtedness under any Newco 2 Loan Agreement;

 

(c)                                      loans made by MGG to Newco 2; and

 

(d)                                     payments by MGG to any Holding Company of MGG to the extentnecessary to reimburse such Holding Company for any German trade tax liabilityor any German VAT liability which, in either case, is payable by such HoldingCompany but which is attributable to the business activities of MGG or which iscaused by Newco 2 on-lending the proceeds of any Refinancing Note to MGG orDebtco, or by any Finance Document, any Mezzanine Finance Document, anydocument executed in respect of a Direct Mezzanine Refinancing or by Newco 2issuing any Refinancing Note,

** **

**provided that**atthe time any such dividend or payment is paid or loan is advanced to Newco 2(other than (1) pursuant to paragraph (d) or (2) during the Debtco StructurePeriod) all of the following conditions are satisfied:

 

(A)                                  the Term Disposal Facility has been repaid in full and theconditions specified in Clause 23.38 (*Total Debt Relief Amount*) have been met;

 

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(B)                                    there is no Default which is continuing; and

 

(C)                                    the amount of any such dividend, payment or loan when aggregatedwith all other dividends, payments or loans referred to in (a), (b) and (c)above made in the calendar year in which such dividend, payment or loan isproposed to be made would not exceed EUR7,500,000 or its equivalent.

 

“**MIG**”means Messer Industriegesellschaft mbH, registered in the *Handelsregister*(commercialregister) of the *Amtsgericht* (Local Court) of Königstein am Taunus under HRB1033.

 

“**MIG Power ofAttorney**” means each power of attorney from MIG delivered pursuantto paragraph 5 of Part I of Schedule 2 (*Conditions Precedent*).

 

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

 

(a)                                      subject to paragraph (c) below, if the numerically corresponding dayis not a Business Day, that period shall end on the next Business Day in thatcalendar month in which that period is to end if there is one, or if there isnot, on the immediately preceding Business Day;

 

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

 

(c)                                      in relation to determining the last day of an Interest Period, if anInterest Period begins on the last Business Day of a calendar month, thatInterest Period shall end on the last Business Day in the calendar month inwhich that Interest Period is to end.

 

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

 

“**MultiemployerPlan**” means a “multiemployer plan” (as defined in Section 4001(a)(3)in ERISA) maintained or contributed to for employees of a US Group Member orany ERISA Affiliate.

 

“**Net DisposalProceeds**” means in relation to a disposal of an asset, the grosstotal proceeds of such disposal received by the member of the Group concernedin cash less:

 

(a)                                      reasonable fees, commissions and other out of pocket expenses of theGroup incurred due to the disposal;

 

(b)                                     the VAT or similar Tax paid or reasonably estimated to be payable byany member of the Group due to such disposal;

 

(c)                                      any income, capital gains or other Taxes incurred and required to bepaid or reasonably estimated to be payable by any member of the Group inconnection with (i) such disposal or (ii) the remittance or transfer of all orany of such proceeds to another member of the Group in order to enable any suchproceeds to be utilised in prepayment of the Facilities pursuant to the requirementsof Clause 9.5 (*Asset Disposals*), in each case as reasonably determined ingood faith by such member of 

 

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the Group on the basis of the existing tax ratesapplicable to the gain (if any) and after taking into account all availablecredits, deductions and allowances connected with such disposal;

 

(d)                                     that part of the gross total proceeds which is equal to the amount(if any) of additional investment made by any member of the MGG Group in theentity whose shares or assets have been disposed of, where such additionalinvestment was made after the Closing Date; and

 

(e)                                      that part of the gross total proceeds of any disposal which isimmediately upon such disposal occurring applied in repaying Indebtedness forBorrowed Money of the member of the Group making such disposal.

 

For thepurposes of this definition, the term “**Group**” shall at all times include theCompany.

 

“**Newco 2**”means DIOGENES Vierte Vermögensverwaltungs Aktiengesellschaft, a newlyincorporated German stock corporation registered in the *Handelregister* (commercialregister) of the *Amtsgericht* (local court) of Frankfurt am Main under HR B42291 (whose name it is anticipated will be changed to Messer Griesheim HoldingAG) which:

 

(a)                                      pursuant to a restructuring to be carried out by the Vendor prior tothe Closing Date, will be the holder of the Vendor MGG Shares except during theDebtco Structure Period (when it will be the holder of all the shares inDebtco); and

 

(b)                                     pursuant to the terms of the Shareholders’ Agreement, will be(immediately following the Closing Date) the holder of the Family MGG Sharesexcept during the Debtco Structure Period (when it will be the holder of allthe shares in Debtco).

 

“**Newco 2Group**” means, at any time, Newco 2 and its Consolidated Subsidiariesat that time.

 

“**Newco 2 Loan**”means any loan from Newco 2 to MGG or Debtco (other than a High Yield ProceedsLoan and an Exchange Notes Loan) which is made pursuant to a Newco 2 LoanAgreement and is subordinated pursuant to the terms of a Newco 2 LoanSubordination Agreement.

 

“**Newco 2 LoanAgreement**” means a loan agreement entered into between Newco 2 aslender and MGG or (as the case may be) Debtco as borrower governing the termsof any Newco 2 Loan, such loan agreement to be in the form set out in schedule1 of the Newco 2 Loan Subordination Agreement.

 

“**Newco 2 LoanSubordination Agreement**” means a subordination agreement in theagreed form between MGG or Debtco (as the case may be) and Newco 2 relating tothe subordination of the claims of Newco 2 under any Newco 2 Loan to theOutstandings, amounts outstanding under the Hedging Agreements and theMezzanine Outstandings in respect of which the Agent has received a legalopinion from its German counsel in form and substance satisfactory to it(acting reasonably).

 

“**Newco 2Receivable**” means the Hoechst Newco 2 Receivable.

 

“**Non-IndemnifiedUnconsolidated Debt**” means, at any time, Unconsolidated Debt whichis not Indemnified Unconsolidated Debt at such time.

 

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“**NonWholly-Owned Subsidiary**” means a Subsidiary of MGG which is not awholly-owned Subsidiary of MGG provided that at all times during which MGG ownsdirectly or indirectly at least 70% of the issued and voting share capital ofMG OdraGas Spol s.r.o. (whose Relevant Jurisdiction is the Czech Republic) (the“**CzechEntity**”) then the Czech Entity shall be deemed to be a wholly-ownedSubsidiary of MGG.

 

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

 

“**Obligor’sAgent**” means:

 

(a)                                      until MGG becomes a Party, the Company;

 

(b)                                     at all times after MGG has become a Party (other than during theDebtco Structure Period), MGG; and

 

(c)                                      at all times during the Debtco Structure Period, Debtco.

 

“**OECD Country**”means any country for the time being a member of the Organisation for EconomicCo-operation and Development.

 

“**OptionalCurrency**” means a currency (other than the Base Currency) whichcomplies with the conditions set out in Clause 4.3 (*Conditions relating to OptionalCurrencies and the Euro Unit*).

 

“**OriginalFinancial Statements**” means the audited consolidated financialstatements of the MGG Group for the financial year ended 31 December 2000.

 

“**Outstandings**”means at any time, the aggregate of the Base Currency Amounts of the outstandingLoans and the amount of the maximum actual and contingent liabilities of theLenders in respect of each outstanding Letter of Credit and Bank Guarantee.

 

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

 

“**Party**”means a party to this Agreement and includes its successors in title, permittedassigns and permitted transferees.

 

“**PBGC**”means the US Pension Benefit Guaranty Corporation, or any entity succeeding toall or any of its functions under ERISA.

 

“**PermittedAcquisitions**” means:

 

(a)                                      acquisitions of Cash Equivalent Investments;

 

(b)                                     acquisitions of any assets by a Holding Company of MGG from aHolding Company of MGG;

 

(c)                                      acquisitions of assets by a member of the MGG Group from anothermember of the MGG Group;

 

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(d)                                     acquisitions (including the China Acquisition) expressly contemplatedin the Business Combination Agreement (excluding all of its schedules, exhibitsand attachments) and/or the Ancillary Agreements (as defined therein) in themanner and at the time and subject to the terms and circumstances set out inthe Business Combination Agreement (excluding all of its schedules, exhibitsand attachments) and/or the Ancillary Agreements (as defined therein);

 

(e)                                      acquisitions comprising the purchase, subscription for, or otheracquisition of any new shares or other equity investment in any member of theMGG Group (the “**Relevant Entity**”) by another member of the MGG Group **providedthat**:

 

(i)                        if Security has been given to the Security Trustee or the FinanceParties over any of the existing shares in the Relevant Entity, equivalentSecurity is provided as soon as reasonably practicable over the new shares orequity investment in favour of either the Security Trustee or the FinanceParties; and

 

(ii)                     if such acquisition is in shares or other equity investments in aNon Wholly-Owned Subsidiary, the requirements of Clause 23.7 (*JointVentures and Non Wholly-Owned Subsidiaries*) would be complied with;

 

(f)                                        acquisitions comprising the purchase, subscription for, or theacquisition of any shares or other equity investment in any Joint Venture orUnconsolidated Subsidiary of Newco 2 **provided that** the requirements of Clause23.7 (*JointVentures and Non Wholly-Owned Subsidiaries*) would be complied with;

 

(g)                                     acquisitions comprising the purchase, subscription for, or theacquisition of any shares or other equity investment in any Joint Venture orUnconsolidated Subsidiary of Newco 2 pursuant to binding arrangements whichwere existing prior to the Closing Date;

 

(h)                                     subject to the proviso below acquisitions of any assets nototherwise included in other paragraphs of this definition and not made in theordinary course of business and which are not Permitted Capital Expenditure atany time in an amount up to the Additional Basket at such time;

 

(i)                                         the acquisition by the Company of any Holding Operating Company forfair market value;

 

(j)                                         acquisitions of Comparable Assets (as defined in paragraph (e) ofthe definition of Permitted Disposals) in the circumstances permitted inparagraph (e) of the definition of Permitted Disposals; and

 

(k)                                      acquisitions which are not in the ordinary course of business andwhich are not Permitted Capital Expenditure and which do not fall withinparagraphs (a) to (j) above where the total consideration (both cash and non-cash,including the amount of indebtedness assumed by the purchaser or remaining inthe assets acquired and the amount of any deferred purchase price) for suchacquisitions in aggregate from the date of this Agreement does not exceed (ifsuch acquisition is made prior to the Relevant Debt Relief Amount being atleast EUR255,000,000 (or its equivalent in other currencies) and the TermDisposal Facility being repaid in full) EUR75,000,000

 

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(or its equivalent in another currency or currencies)or (if such acquisition is made after the Relevant Debt Relief Amount hasexceeded EUR255,000,000 (or its equivalent in other currencies) and the TermDisposal Facility has been repaid in full) EUR250,000,000 (or its equivalent inother currencies),

 

providedthat in the case of any acquisition falling within paragraph (h) or (k) aboveat the time of such acquisition the following conditions are satisfied:

 

(A)                                  there is no Default which is continuing; and

 

(B)                                    if the amount of the consideration for the acquisition (calculatedas in paragraph (k) above) is greater than EUR10,000,000 (or its equivalent inother currencies), the Obligor’s Agent has supplied to the Agent a certificatesigned by any of its Prokurists, supported by accompanying calculations,demonstrating that if the EBITDA of or attributable to those assets, and thedebt to be added to the consolidated balance sheet of the Newco 2 Group as aresult of the acquisition, were included, on a pro forma basis, in thecalculation of the Leverage Ratio as at the last Quarter Date in respect ofwhich financial statements have been delivered pursuant to Clause 21.1 (*Financialstatements*), the requirements of paragraph (d) of Clause 22.2 (*Financialcondition*) would have been satisfied.

 

“**PermittedCapital Expenditure**” means any Capital Expenditure permitted to bemade pursuant to the provisions of Clause 22.3 (*Capital Expenditure*).

 

“**PermittedDisposals**” means:

 

(a)                                      disposals of assets by any member of the Group in its ordinarycourse of trading;

 

(b)                                     disposals:

 

(i)                       of assets (but not shares in MGG) by a Holding Company of MGG (otherthan Debtco) to another Holding Company of MGG (other than Debtco);

 

(ii)                    of assets by a member of the MGG Group to another member of the MGGGroup;

 

(c)                                      disposals for cash of any surplus or obsolete or worn-out assets orother assets which have been lost or which are disposed of to a customer onarm’s length terms on termination of a business relationship which in thereasonable opinion of the member of the Group making the disposal are notrequired for the efficient operation of the business of the Group as a whole;

 

(d)                                     disposals of Cash Equivalent Investments on arm’s length terms;

 

(e)                                      disposals on arm’s length terms of assets either:

 

(i)                        in return foror simultaneous with the acquisition by a member of the MGG Group of otherassets (“**ComparableAssets**”) which in the reasonable opinion of the relevant member ofthe Group making the disposal are of comparable or greater value or earningsgeneration potential (and, if the assets disposed of are in a Core Country, theComparable Assets must also be in a Core Country) 

 

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providedthat to the extent that consideration other than the disposed assets is used toacquire such Comparable Assets the acquisition of those assets for an amountequal to that additional consideration would be a Permitted Acquisition; or

 

(ii)                     in respect ofwhich prior to the expiry of 180 days after receipt by the relevant member ofthe Group of the Net Disposal Proceeds relating to the disposal of such assetsthe relevant member of the Group making such disposal or another member of theGroup (which other member of the Group is, if the member of the Group makingsuch disposal is incorporated in a Core Country, also incorporated in a CoreCountry) has either (A) acquired Comparable Assets with such Net DisposalProceeds or (B) entered into a binding commitment to acquire Comparable Assetsand does so acquire such Comparable Assets within 360 days of the date ofreceipt of such Net Disposal Proceeds **provided that**until either (A) or (B) issatisfied an amount equal to such Net Disposal Proceeds is placed in aPrepayment Escrow Account within 5 Business Days of receipt thereof by a memberof the Group;

** **

**provided that**:

 

(i)                        the aggregatefair market value of assets which are permitted to be disposed of pursuant tothis paragraph (e) does not from the date of this Agreement exceedEUR250,000,000 (or its equivalent in other currencies); and

 

(ii)                     if any assetproposed to be disposed of pursuant to this paragraph (e) whose fair marketvalue is greater than EUR10,000,000 (or its equivalent in other currencies) issubject to security provided under any Security Document or is owned by amember of the Group whose shares are pledged under a Security Document, thenfor such disposal to be permitted pursuant to this paragraph (e) the Obligor’sAgent shall either have supplied to the Agent a certificate signed by any ofits Prokurists, supported by accompanying calculations, demonstrating either:

 

(x)                                                  that if the book value of the assets to be disposed of and theEBITDA attributable to such assets disposed of had not been taken into accountin the then most recent Compliance Certificate or Auditor’s Report (and, if theasset to be acquired is to be owned by a Security Party, the book value of andEBITDA attributable to the  asset to beacquired had been taken into account) for determining compliance with theprovisions of paragraphs (a) and (b) of Clause 23.30 (*Guarantor Group and Security Coverage*)it would have been in compliance with such paragraphs (a) and (b) of Clause23.30; or

 

(y)                                                if (x) is not satisfied, a company will become an AdditionalGuarantor and/or additional Security Documents will be entered into prior tosuch disposal which, if included in such Compliance Certificate or Auditor’sRequest, would have meant that the provisions of paragraphs (a) and (b) ofClause 23.30 were complied with;

 

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(f)                                        the granting of leases or licences over property on arm’s lengthterms, where such property is not required to allow the continued operation ofthe business of the Group as a whole;

 

(g)                                     disposals of cash where such disposal is not prohibited by theFinance Documents (including cash payments to the Company which do not giverise to an Event of Default under Clause 23.9 (*Dividends and Distributions*));

 

(h)                                     disposals made pursuant to the implementation of the Disposal Plan;

 

(i)                                         disposals which pursuant to the provisions of section 14 (*Approval ofBudgets and Business Plan by the Shareholders’ Committee*) of theShareholders’ Agreement either do not require the consent of 75% of the votescast at a Shareholders Committee or Shareholders Meeting (each as referred totherein) or to which MIG is obliged to consent;

 

(j)                                         disposals expressly contemplated in the Business CombinationAgreement (excluding all of its schedules, exhibits and attachments) and/or theAncillary Agreements in the manner and at the time and subject to the terms andcircumstances set out in the Business Combination Agreement (excluding all ofits schedules, exhibits and attachments but including, without limitation, anydisposals that may be required pursuant to section 3.3 (*Exemption of Certain Transactions*)of the BCA);

 

(k)                                      a disposal by:

 

(i)                        Newco 2 of itsshares in MGG to Debtco **provided that**the shares in MGG remain orare immediately pledged pursuant to a Security Document;

 

(ii)                     Debtco of itsshares in MGG to Newco 2 **provided that**the shares in MGG remain orare immediately pledged pursuant to a Security Document;

 

(iii)                  MGG of its shares inMesser Singapore, its shares in Syngas and the other Transferred Assets andTransferred Liabilities of MGG relating to such companies as referred to in theSingapore Separation Agreement to Singapore SPV on the terms and conditions setout in the Singapore Separation Agreement;

 

(iv)                 MGG or any Subsidiaryof MGG of its shares in a Central American Entity or a disposal by a CentralAmerican Entity of substantially all of its assets to MIG or a persondesignated by MIG provided that (A) such disposal is made on an arm’s lengthbasis in good faith and in the commercial interests of the members of the MGGGroup (other than the Central American Entity) party thereto and (B) 50% of theconsideration for such disposal is received by the MGG Group in cash; and

 

(v)                    the relevantmembers of the MGG Group of the shares in the Holding Operating Companies tothe Company for fair market value;

 

(l)                                         any disposal of assets pursuant to and on the terms of the ExistingFactoring Programme or a Permitted Factoring Programme;

 

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(m)                                   any disposal to which the Majority Lenders have given their priorwritten consent;

 

(n)                                     any other disposal(s) on arm’s length terms **provided that** the aggregateconsideration received for such disposal(s) (both cash and non-cash, includingthe amount of Indebtedness for Borrowed Money assumed by the purchaser orremaining in the assets disposed of or (if the disposal relates to a disposalof less than the whole of the issued shares of a person) the relevantproportion of such Indebtedness for Borrowed Money):

 

(i)                        is no greaterthan EUR50,000,000 (or its equivalent in another currency or currencies) in anycalendar year; and

 

(ii)                     from the date ofthis Agreement is no greater than EUR250,000,000 (or its equivalent in anothercurrency or currencies),

** **

**provided that**

 

(A)                                  any disposal by way of the sale of the shares in any member of theGroup (other than the disposal referred to in paragraph (k)(iii) above) or thesale of substantially all of the assets of a member of the Group which wouldotherwise be permitted under any of the paragraphs of this definition shall notbe permitted if any member of the Group after such disposal would remain liablefor any contingent liabilities relating to the member of the Group which is tobe sold or the business which is to be sold other than those which it would becustomary and usual for a disposing company to remain liable for; and

 

(B)                                    in the case of disposals of assets under paragraphs (h), (i) and (n)above the consideration for such disposals may only comprise one or more of theelements set out in (1), (2) and (3) below and may include in additionconsideration in the form of (4) below:

 

(1)                     cash payable on the completion of the disposals;

 

(2)                     an obligation of the purchaser of such assets to pay the remainderof the purchase price at a date or dates no later than 3 years after thecompletion of such disposal (a “**Deferred Purchase Obligation**”) (providedthat the aggregate amount of all such Deferred Purchase Obligations which havenot been paid in cash to the relevant vendor or otherwise monetarised shall atno time exceed EUR100,000,000 (or its equivalent in other currencies));

 

(3)                     the assumption of indebtedness by the purchaser or remaining in theasset disposed of; and

 

(4)                     an amount of cash payable in the nature of an earn out payment bythe purchaser to the vendor of any such asset which is genuinely contingent anddependent on the future performance or future value of the asset disposed ofshall not count towards the limits set out in paragraph (n) or paragraph (2)above.

 

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“**PermittedDistributions**” means the payment or declaration of any dividend,return on capital, repayment of capital contributions or other distribution orpayment in respect of share capital by any member of the MGG Group other than:

 

(a)                                      by MGG save that MGG may:

 

(i)                        pay dividends which are MGG Permitted Distributions; and

 

(ii)                     pay any dividend to Debtco during the Debtco Structure Period;

 

(b)                                     by Debtco save that Debtco may pay dividends which are DebtcoPermitted Distributions,

** **

**provided that** (saveas otherwise permitted pursuant to paragraphs (a) or (b) or pursuant to theIntercreditor Deed) if a Default has occurred which is continuing no suchpayment, declaration, return, repayment distribution or payment may be made bya member of the Group who is an Obligor to another member of the Group who isnot a wholly-owned Subsidiary of MGG or (during the Debtco Structure Period)Debtco other than to MGG or (during the Debtco Structure Period) Debtco.

 

“**PermittedExchange Notes Security**” means the following security in favour ofthe bond trustee of the holders of the Exchange Notes:

 

(a)                                      an assignment in substantially the agreed form by Newco 2 over itsrights to receive the excess proceeds (if any) remaining after a sale of theshares in MGG pursuant to an enforcement of the pledge over the shares in MGGand after all Senior Liabilities (as defined in the Intercreditor Deed) havebeen fully paid and discharged in full to the satisfaction of the Agent (actingreasonably); and

 

(b)                                     an assignment in substantially the agreed form by Newco 2 over itsrights in relation to the proceeds of the Exchange Notes Loan.

 

“**PermittedFactoring Programme**” means any factoring programme permittedpursuant to paragraph (k) in the definition of Permitted Indebtedness in thisClause 1.1 (*Definitions*).

 

“**PermittedHigh Yield Security**” means the following security in favour of thebond trustee of the holders of the High Yield Notes:

 

(a)                                      an assignment in substantially the agreed form by Newco 2 over itsrights to receive the excess proceeds (if any) remaining after a sale of theshares in MGG pursuant to an enforcement of the pledge over the shares in MGGand after all Senior Liabilities (as defined in the Intercreditor Deed) havebeen fully paid and discharged in full to the satisfaction of the Agent (actingreasonably); and

 

(b)                                     an assignment in substantially the agreed form by Newco 2 over itsrights in relation to the proceeds of the High Yield Proceeds Loan.

 

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“**PermittedIndebtedness**” means:

 

(a)                                      any Financial Indebtedness arising under or permitted pursuant tothe Finance Documents or the Mezzanine Finance Documents or any DirectMezzanine Refinancing Facility;

 

(b)                                     any Financial Indebtedness arising under Permitted Loans andGuarantees;

 

(c)                                      any Financial Indebtedness arising under Permitted TreasuryTransactions;

 

(d)                                     any Financial Indebtedness **provided that** such Financial Indebtednessis subordinated on terms acceptable to the Majority Lenders (actingreasonably);

 

(e)                                      any Financial Indebtedness of any Obligor in respect of a bankaccount held as part of a cash pooling or similar arrangement with any otherObligor(s);

 

(f)                                        any Financial Indebtedness to the extent such is supported by anyLetter of Credit or Bank Guarantee issued under this Agreement or is secured(directly or indirectly) by cash collateral provided by any member of the Groupfrom the proceeds of any Loan made under this Agreement or under the MezzanineFacility Agreement;

 

(g)                                     any Financial Indebtedness arising under the High Yield Documents orany Exchange Notes Documents;

 

(h)                                     any Financial Indebtedness in respect of Finance Leases **providedthat** the aggregate amount of Financial Indebtedness which fallswithin this paragraph (h) does not exceed EUR150,000,000 (or its equivalent inanother currency or currencies) at any time;

 

(i)                                         any Financial Indebtedness arising under any Permitted LocalFacilities;

 

(j)                                         any Financial Indebtedness arising under any Existing Indebtedness(which is not otherwise permitted under any paragraph of this definition ofPermitted Indebtedness other than paragraph (l));

 

(k)                                      any Financial Indebtedness:

 

(i)                        incurredpursuant to the terms of the Existing Factoring Programme **provided that** (A) theaggregate amount of such Financial Indebtedness does not exceed DM 100,000,000(or its equivalent in other currencies) at any time and (B) such ExistingFactoring Programme is terminated and the aggregate amount of FinancialIndebtedness incurred pursuant to it permanently reduced to zero within 31 daysof the Closing Date; or

 

(ii)                     incurred pursuantto the terms of any factoring arrangements other than under the ExistingFactoring Programme **provided that** the aggregate amount of suchFinancial Indebtedness does not exceed EUR15,000,000 (or its equivalent inother currencies) at any time;

 

(l)                                         any Financial Indebtedness (excluding Financial Indebtedness ofNewco 2) not falling within paragraphs (a) to (k) above **provided that** the aggregateamount of Financial

 

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Indebtedness falling within this paragraph (l) doesnot exceed EUR50,000,000 (or its equivalent in another currency or currencies)at any time;

 

(m)                                   any Financial Indebtedness of Newco 2 under the Newco 2 Receivableor in respect of a loan made by the Company to Newco 2;

 

(n)                                     any Financial Indebtedness to which the Majority Lenders have giventheir prior written consent.

 

“**PermittedLoans and Guarantees**” means:

 

(a)                                      trade credit or indemnities granted in the ordinary course ofbusiness on usual and customary terms or guarantees of such trade credit orindemnities granted in the ordinary course of business on usual and customaryterms;

 

(b)                                     Intra-Group Loans **provided that**:

 

(i)                        no member ofthe MGG Group may make a loan to any Holding Company of MGG save that MGG maymake loans which are MGG Permitted Distributions, Debtco may make loans whichare Debtco Permitted Distributions and (during the Debtco Structure Period)members of the MGG Group may make loans to Debtco;

 

(ii)                     no loan may bemade by any Holding Company of MGG (other than, during the Debtco Structure Period,Debtco) to any member of the MGG Group other than:

 

(A)            aHigh Yield Proceeds Loan; or

 

(B)              aNewco 2 Loan; or

 

(C)              anExchange Notes Loan;

 

(iii)                  no loan may be madeby MGG or Debtco or a wholly-owned Subsidiary of MGG to a Non Wholly-OwnedSubsidiary that is not an Obligor unless the requirements of Clause 23.7 (*JointVentures and Non Wholly-Owned Subsidiaries*) would be complied with;

 

(iv)                 in the case of anyIntra-Group Loan entered into by any Obligor as a borrower or lender thatObligor has acceded to the Intercreditor Deed as an Intra-Group Borrower orIntra-Group Lender (as appropriate) pursuant to the terms thereof or is alreadyparty to the Intercreditor Deed in such capacity;

 

(v)                    in the case of anyIntra-Group Loan entered into by an Obligor as borrower (other than a loanpermitted pursuant to sub-paragraph (ii) or (vi) of this paragraph (b)) thelender of such loan has acceded to the Intercreditor Deed as an Intra-GroupLender;

 

(vi)                 the aggregate amountof Financial Indebtedness at any time owed by Obligors under Intra-Group Loansto members of the MGG Group who are not party to the Intercreditor Deed asIntra-Group Lenders does not exceed EUR100,000,000 (or its equivalent in othercurrencies);

 

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(vii)              any Intra-Group Loanmade by a Treasury Borrower shall be made in accordance with the provisions ofa Treasury Borrower Loan Agreement;

 

(viii)           any Intra-Group Loan madeby Debtco as lender may only be made to MGG as borrower and shall expresslyprovide that it is governed by German law;

 

(c)                                      loans to MGG Joint Ventures or Unconsolidated Subsidiaries of Newco2 by members of the MGG Group which are made pursuant to binding arrangementswhich were existing prior to the Closing Date;

 

(d)                                     loans to an MGG Joint Venture or an Unconsolidated Subsidiary ofNewco 2 by a member of the MGG Group which do not fall within paragraph (c)above or paragraph (g) below **provided that** the requirements of Clause23.7 (*JointVentures and Non Wholly-Owned Subsidiaries*) would be complied with;

 

(e)                                      loans constituting Permitted Indebtedness or guarantees orindemnities which would constitute Permitted Indebtedness or guarantees orindemnities in respect of Permitted Local Facilities;

 

(f)                                        loans to employees of the MGG Group and guarantees of loans to suchemployees **providedthat** the aggregate principal amount of all such loans and guaranteesdoes not exceed EUR10,000,000 (or its equivalent in other currencies) at anytime;

 

(g)                                     Messer International GmbH may make loans to Singapore SPV in orderto satisfy its obligations pursuant to the provisions of section 4.2 (*Making ofShareholder Loans*) of the Singapore Separation Agreement **providedthat**(i) such loans are repayable by Singapore SPV on the terms andconditions specified in the Singapore Separation Agreement and (ii) theaggregate amount of all such loans does not exceed at any time DM 180,000,000(or its equivalent) less the Hoechst Closing Amount (as defined in section 4.5of the Singapore Separation Agreement, being the amount confirmed underparagraph 3(e) of Part I of Schedule 2 (*Conditions Precedent*));

 

(h)                                     guarantees or indemnities given by members of the MGG Group inrespect of indebtedness of MGG Joint Ventures or Unconsolidated Subsidiaries ofNewco 2 which are made pursuant to binding arrangements which were existingprior to the Closing Date;

 

(i)                                         guarantees or indemnities given by members of the MGG Group inrespect of indebtedness of MGG Joint Ventures or Unconsolidated Subsidiaries ofNewco 2 which do not fall within paragraph (h) above provided that therequirements of Clause 23.7 (*Joint Ventures and Non Wholly-Owned Subsidiaries*)would be complied with;

 

(j)                                         guarantees or indemnities given by a member of the MGG Group inrespect of the indebtedness of another member of the MGG Group provided that nosuch guarantees or indemnities may be given by MGG or Debtco or a wholly-ownedSubsidiary of MGG in respect of the indebtedness of a Non Wholly-OwnedSubsidiary that is not an Obligor unless the requirements of Clause 23.7 (*JointVentures and Non Wholly-Owned Subsidiaries*) would be complied with;

 

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(k)                                      the extension of credit by a member of the Group making a disposalof an asset to the purchaser of such asset **provided that** in the case of disposals madeunder paragraphs (h), (i) and (n) of the definition of Permitted Disposals suchcredit is permitted pursuant to paragraph (B) of the proviso at the end of thedefinition of Permitted Disposals; and

 

(l)                                         the leases and licenses granted by Messer Griesheim ZweiteVermögensverwaltungs GmbH and Messer Griesheim Erste Vermögensverwaltungs GmbHto NGG pursuant to the lease and licence agreements dated 20 December 2002entered into in relation to the Sale and Leaseback Transaction.

 

“**PermittedLocal Facilities**” means any bank facilities (other than facilitiesprovided under the Finance Documents or the Mezzanine Finance Documents or anyDirect Mezzanine Refinancing Facility) made available to members of the MGGGroup (on normal commercial terms) **provided that:**(a) the aggregateindebtedness of all members of the MGG Group in respect of such bank facilitiesat no time exceeds EUR100,000,000 (or its equivalent in any other currency orcurrencies); and (b) no one such bank facility is capable of having more thanEUR10,000,000 (or its equivalent in other currencies) outstanding at any onetime.

 

“**PermittedSecurity**” means:

 

(a)                                      any Security entered into pursuant to any of the Finance Documentsor the Mezzanine Finance Documents or any Direct Mezzanine Refinancing or anyPermitted High Yield Security or any Permitted Exchange Notes Security;

 

(b)                                     any Security which was provided prior to the Closing Date by anymember of the MGG Group **provided that** the principal amount ofindebtedness secured by any such Security as at the Closing Date is notincreased and the aggregate principal amount of indebtedness secured by allsuch Security after the first Loan has been made hereunder is not greater thanEUR25,000,000 (or its equivalent in other currencies) subject to the proviso atthe end of this definition;

 

(c)                                      any netting or set-off arrangement (or any Security over a creditbalance in a bank account which is entered into in order to effect such anarrangement) entered into:

 

(i)                        by any memberof the Group in the normal course of its banking arrangements; or

 

(ii)                     by any member ofthe MGG Group in relation to another member of the MGG Group in connection withany cash pooling or similar arrangements between such members of the MGG Group;or

 

(iii)                  in the ordinarycourse of trade;

 

(d)                                     any netting or set-off arrangement under a Hedging Agreement wherethe obligations of other parties thereunder are calculated by reference to netexposure thereunder (but not any netting or set-off relating to such HedgingAgreement in respect of cash collateral or any other Security except asotherwise permitted under this Agreement);

 

(e)                                      any lien arising by operation of law and in the ordinary course oftrading;

 

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

 

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

 

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

 

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

 

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

 

(i)                        the Securityor Quasi-Security was not created in contemplation of the acquisition of thatcompany;

 

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

 

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

 

(h)                                     any title transfer or retention of title arrangement entered into byany member of the Group in the normal course of its trading activities on thecounterparty’s standard or usual terms;

 

(i)                                         any lien in favour of a bank over goods and documents of title togoods arising in the ordinary course of documentary credit transactions enteredinto in the ordinary course of trade;

 

(j)                                         any Security arising under the general business conditions of anycredit institution with whom any member of the Group maintains a bankingrelationship in the ordinary course of business;

 

(k)                                      any Security arising on rental deposits in connection with theoccupation of leasehold premises in the ordinary course of business;

 

(l)                                         any Security arising by operation of law in favour of anygovernment, state or local authority in respect of taxes, assessments orgovernment charges which are being contested by the relevant member of theGroup in good faith;

 

(m)                                   any Security or Quasi Security securing Permitted Local Facilitiessubject to the proviso at the end of this definition;

 

(n)                                     any Security provided by Messer Trinidad and Tobago Limited toInternational Finance Corporation (“**IFC**”) securing amounts owing under the loanagreement dated 15 February 2000 made between Messer Trinidad and TobagoLimited and IFC;

 

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(o)                                     any Security over a deposit in a bank account providing cashcollateral in respect of any Existing Indebtedness or securing (directly orindirectly) any Financial Indebtedness falling within paragraph (f) of thedefinition of Permitted Indebtedness;

 

(p)                                     any Security or Quasi-Security arising under or in respect of anyFinance Lease falling within paragraph (h) of the definition of PermittedIndebtedness;

 

(q)                                     any Security or Quasi-Security not falling within paragraphs (a) to(p) above securing indebtedness and/or other obligations the aggregateprincipal amount of which does not exceed EUR50,000,000 (or its equivalent inanother currency or currencies) subject to the proviso at the end of thisdefinition; and

 

(r)                                        any Security to which the Majority Lenders have given their priorwritten consent,

** **

**provided that**the Security or QuasiSecurity falling within:

 

(a)                                      paragraphs (b), (m) and (q) above; and

 

(b)                                     paragraph (j) above (but only to the extent that such Security orQuasi Security constitutes a pledge or other Security or Quasi-Security overdocuments held with any credit institution and is not permitted under any otherparagraph of Permitted Security and secures obligations other than obligationswhich are owing under the Finance Documents),

 

may not at anytime after the first Loan is made hereunder secure indebtedness and/or otherobligations (or, in the case of any Security or Quasi Security falling underparagraph (j) above (to the extent relevant as described in paragraph (b) ofthis proviso) the value of the assets subject to such Security) the aggregateprincipal amount of which exceeds EUR75,000,000 (or its equivalent in othercurrencies).

 

“**PermittedTreasury Transactions**” means:

 

(a)                                      the Treasury Transactions entered into in accordance with Clause23.29 (*Hedging*);

 

(b)                                     the Treasury Transactions, if any, which are foreign exchangetransactions entered into with a Hedge Counterparty in connection with paymentsmade or to be made by any Obligor in connection with the Acquisition; and

 

(c)                                      any other foreign exchange transactions for spot or forward deliveryentered into in the ordinary course of business (and not for investment orspeculative purposes) to hedge currency exposures (including, withoutlimitation, currency exposure relating to Loans made in an Optional Currency)incurred by any member of the Group.

 

“**PrepaymentEscrow Account**” means an interest bearing account held with theAgent (or such other financial institution reasonably acceptable to the Agent)in the name of any Obligor (and identified as a Prepayment Escrow Account),over which such Obligor has granted Security in favour of the Security Trusteeor all of the Finance Parties and into which sums are deposited in accordancewith Clause 9 (*Prepayment and Cancellation*) and may not be withdrawn by anymember of the Group other than as provided by Clause 9 (*Prepayment and Cancellation*).

 

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“**PrepaymentOrder**” means, in respect of any amount to be applied in repayment ofany Term Disposal Facility Loans, Term A Facility Loans, Term B Euro FacilityLoans, Term B Dollar Facility Loans, Term C Euro Facility Loans or Term CDollar Facility Loans in accordance with Clause 9.8 (*Application of Prepayments*),the application of such amount as follows either:

 

(a)

 

(i)                        as to 50 percent. of such amount, the application of such in satisfaction of theobligations under Clause 7.1 (*Repayment of Term Disposal Facility Loans*),Clause 7.2 (*Repaymentof Term A Facility Loans*), Clause 7.3 (*Repayment of Term B Dollar FacilityLoans*), Clause 7.4 (*Repayment of Term B Euro Facility Loans*),Clause 7.5 (*Repaymentof Term C Euro Facility Loans*) or, as the case may be, Clause 7.6 (*Repayment ofTerm C Dollar Facility Loans*) in inverse chronological order; and

 

(ii)                     as to the remaining50 per cent. of such amount, the application of such in satisfaction of theobligations under Clause 7.1 (*Repayment of Term Disposal Facility Loans*),Clause 7.2 (*Repaymentof Term A Facility Loans*), Clause 7.3 (*Repayment of Term B Dollar FacilityLoans*), Clause 7.4 (*Repayment of Term B Euro Facility Loans*),Clause 7.5 (*Repaymentof Term C Euro Facility Loans*) or, as the case may be, Clause 7.6 (*Repayment ofTerm C Dollar Facility Loans*) pro rata across the Outstandings undereach of the relevant Term Facilities; or

 

(b)                                     (if the Obligor’s Agent has notified the Agent in accordance withClause 9.8(a)(i) or Clause 9.8(b)(i) (*Applicationof prepayments*), or Clause 9.11(c)(ii) (*Voluntary prepayment of Term Facility Loans*)), as to 100 percent. of such amount, the application of such in satisfaction of theobligations under Clause 7.1 (*Repayment of Term Disposal Facility Loans*),Clause 7.2 (*Repaymentof Term A Facility Loans*), Clause 7.3 (*Repayment of Term B Dollar FacilityLoans*), Clause 7.4 (*Repayment of Term B Euro Facility Loans*),Clause 7.5 (*Repaymentof Term C Euro Facility Loans*) or, as the case may be, Clause 7.6 (*Repayment ofTerm C Dollar Facility Loans*) in inverse chronological order.

 

“**PrepaymentPremium**” means an amount equal to:

 

(a)                                      in respect of a Prepayment Premium Loan (or part of a PrepaymentPremium Loan) which either becomes immediately due and payable pursuant to theprovisions of Clause 9.2 (*Change of Control*) or Clause 9.3 (*Flotation orSale*) or which a Borrower voluntarily gives notice that it wishes toprepay, in each case on or before the day 12 Months after the Closing Date, 2per cent. of the Base Currency Amount of the portion of that Prepayment PremiumLoan which is to be prepaid; or

 

(b)                                     in respect of a Prepayment Premium Loan (or part of a PrepaymentPremium Loan) which either becomes immediately due and payable pursuant to theprovisions of Clause 9.2 (*Change of Control*) or Clause 9.3 (*Flotation orSale*) or which a Borrower voluntarily gives notice that it wishes toprepay, in each case after the day 12 Months after the Closing Date but on orbefore the Prepayment Premium Date, 1 per cent. of

 

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the Base Currency Amount of the portion of thatPrepayment Premium Loan which is to be prepaid.

 

“**PrepaymentPremium Date**” means the day 24 Months after the Closing Date.

 

“**PrepaymentPremium Loan**” means a Term B Euro Facility Loan, a Term B DollarFacility Loan, a Term C Euro Facility Loan or a Term C Dollar Facility Loan.

 

“**PriorityLetter**” means any letter in the agreed form from an addressee of aReport which is not a party to the Intercreditor Deed and which is addressed tothe Security Trustee on behalf of the Finance Parties and the Mezzanine FinanceParties relating to the priority of claims in respect of that Report.

 

“**QuasiSecurity**” means any of the transactions described in paragraph (b)of Clause 23.3 (*Negative Pledge*).

 

“**QuotationDay**” means, in relation to any period for which an interest rate isto be determined:

 

(a)                                      (if the currency is sterling) the first day of that period;

 

(b)                                     (if the currency is euro) two TARGET Days before the first day ofthat period; or

 

(c)                                      (for any other currency) two Business Days before the first day ofthat period,

 

unless marketpractice differs in the Relevant Interbank Market for a currency, in which casethe Quotation Day for that currency will be determined by the Agent inaccordance with market practice in the Relevant Interbank Market (and ifquotations would normally be given by leading banks in the Relevant InterbankMarket on more than one day, the Quotation Day will be the last of those days) **providedthat** in the case of any Loan to which a one day interest periodshall apply pursuant to paragraph (j) of Clause 11.4 (*Selection of Interest Periods and Terms*)the Quotation Day shall be the first day of that period.

 

“**ReferenceBanks**” means the principal London offices of The Chase ManhattanBank, Bayerische Hypo-und Vereinsbank AG and The Royal Bank of Scotland plc orsuch other banks as may be appointed by the Agent with the approval of theObligor’s Agent (such approval not to be unreasonably withheld or delayed).

 

“**RefinancingNotes**” means any High Yield Notes or any Exchange Notes.

 

“**Register**”has the meaning ascribed to it in Clause 25.1 (*Assignments and Transfers by theLenders*).

 

“**RegulationsT, U and X**” means, respectively, Regulations T, U and X of the Boardof Governors of the Federal Reserve System of the United States (or anysuccessor).

 

“**RelatedParty**” means any of the following:

 

(a)                                      an Affiliate of a specified person;

 

(b)                                     any other person directly or indirectly controlling or controlled byor under direct or indirect common control with that specified person, where “**control**”(and

 

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“**controlling**”, “**controlled by**” and “**under commoncontrol with**”) mean the possession, directly or indirectly, of thepower to direct or cause the direction of the management or policies of aperson, whether by the ownership of shares, by agreement or otherwise;

 

(c)                                      a person who beneficially owns 5 per cent. or more of the issuedshare capital of a specified person.

 

“**Relevant Ancillary Facility**” means, inconnection with a provision relating to a Revolving Facility, the AncillaryFacility which is proposed to be, is or was (as the case may be) made availablein place of some or all of a Lender’s Available Commitment under that RevolvingFacility.

 

“**RelevantDebt Relief Amount**” means, at any time, the aggregate of:

 

(a)                                      Debt Relief Amounts at such time attributable to disposals under theDisposal Plan;

 

(b)                                     Debt Relief Amounts at such time attributable to disposals fallingunder paragraph (i) of the definition of Permitted Disposal;

 

and a DebtRelief Amount will only be attributable to disposals referred to in paragraphs(a) or (b) above if in relation to the relevant disposal the ComplianceCertificate accompanying the financial statements for the period in which suchdisposals were made is delivered pursuant to Clause 21.2 (*Compliance Certificates*)providing:

 

(i)                        details as tothe asset disposed of; and

 

(ii)                     confirming thatit is a disposal under the Disposal Plan or falling within paragraph (i) of thedefinition of Permitted Disposals (as the case may be); and

 

(iii)                  confirming the DebtRelief Amount relating to that disposal together with reasonable details as tohow this has been calculated.

 

“**RelevantGAAP**” means:

 

(a)                                      with respect to Newco 2 on a consolidated basis and MGG, IAS or(subject to agreement being reached pursuant to the provisions of paragraph (d)of Clause 21.4 (*Requirements as to financial statements*)), US GAAP; and

 

(b)                                     with respect to any other member of the Newco 2 Group (eitheralone or including its Subsidiaries), the generally accepted accountingprinciples and practices of its jurisdiction of incorporation.

 

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

 

“**RelevantJurisdiction**” means, in respect of any person, the jurisdiction ofthe country in which such person is incorporated or, if it is not incorporated,its seat or principal place of business.

 

“**Relevant Revolving Facility**” means inconnection with a provision relating to an Ancillary Facility, the RevolvingFacility in respect of which some or all of a Lender’s Available

 

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Commitment isproposed to be, is or was (as the case may be) replaced by that AncillaryFacility.

 

“**RelianceLetter**” means any letter in the agreed form from a provider of aReport and which is addressed to the Security Trustee (on behalf of the FinanceParties and the Mezzanine Finance Parties) or any Arranger on behalf of theFinance Parties and any Mezzanine Arranger on behalf of the Mezzanine FinanceParties or the relevant Finance Parties and the relevant Mezzanine FinanceParties and pursuant to which the provider of the Report agrees that therelevant Finance Parties and the relevant Mezzanine Finance Parties areentitled to rely on such Report subject to and on the terms set out therein.

 

“**RepaymentInstalment**” means a Term Disposal Facility Repayment Instalment, aTerm A Facility Repayment Instalment, a Term B Euro Facility RepaymentInstalment, a Term B Dollar Facility Repayment Instalment, a Term C EuroFacility Repayment Instalment or a Term C Dollar Facility Repayment Instalment.

 

“**RepeatingRepresentations**” means each of the representations set out inClauses 20.4 (*Status*) to 20.11 (*No default*) (inclusive), paragraph (d) ofClause 20.12 (*No misleading information*), Clause 20.13 (*Financialstatements*), Clause 20.14 (*Financial Year End*), Clauses 20.15 (*Pari passuranking*) to 20.23 (*Good title to assets*) (inclusive) andClauses 20.27 (*Group Structure*) to Clause 20.36 (*Investment companies*) (inclusive).

 

“**Reports**”means:

 

(a)                                      the Legal Reports;

 

(b)                                     the long form accountants’ report on the MGG Group, in the agreedform, prepared by KPMG Deutsche Treuhand-Gesellschaft AG which includes thefollowing sections:

 

(i)                        the GroupFinancials Report;

 

(ii)                     the CountryReports;

 

(iii)                  the PensionsReports;

 

(iv)                 the IT Report;

 

(v)                    the Tax Report;

 

(vi)                 the Cost Analysis;

 

(vii)              the Net Debt Report;

 

(viii)           the 2000 Outturn Report tobe provided pursuant to (and as defined in) paragraph (b) of Clause 23.37 (*ConditionsSubsequent*); and

 

(ix)                   the ProjectionsReport to be provided pursuant to (and as defined in) paragraph (b) of Clause23.37 (*ConditionsSubsequent)*;

 

(c)                                      the market report on the MGG Group, in the agreed form, prepared byCryoGas Consulting Limited;

 

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(d)                                     the environmental report on the MGG Group, in the agreed form,prepared by Dames & Moore GmbH & Co. KG;

 

(e)                                      the insurance report on the MGG Group, in the agreed form, datedSeptember 2000 prepared by Marsh GmbH;

 

(f)                                        the Consultants Report; and

 

(g)                                     the KPMG Business Plan Audit;

 

“**Reservations**”means any reservations as to matters of law which are referred to in any legalopinion delivered to the Agent pursuant to, in respect of the Company and Newco2, Clause 4 (*Conditions of Utilisation*) or, in respect of any AdditionalObligor, Clause 26 (*Changes to the Obligors*).

 

“**ResignationLetter**” means a letter substantially in the form set out in Schedule7 (*Formof Resignation Letter*).

 

“**RestructuringExpenses**” means costs and expenses relating to the RestructuringProgramme which do not exceed in aggregate EUR100,000,000 or its equivalent inother currencies*.*

 

“**RestructuringProgramme**” means the restructuring programme intended to beimplemented by the MGG Group after the Closing Date as set out in Schedule 9 (*RestructuringProgramme*).

 

“**RevolvingFacility**” means the Revolving Facility I or the Revolving FacilityII.

 

“**RevolvingFacility Loan**” means a Revolving Facility I Loan or a RevolvingFacility II Loan.

 

“**Revolving****FacilityI**” means the revolving loan, letter of credit and bank guaranteefacility made available under this Agreement as described in paragraph (g) ofClause 2.1 (*TheFacilities*).

 

“**Revolving****FacilityI Commitment**” means:

 

(a)                                      in relation to an Original Lender, the amount in the Base Currencyset opposite its name under the heading “Revolving Facility I Commitment” inPart II of Schedule 1 (*The Closing Parties*) and the amount of anyother Revolving Facility I Commitment transferred to it under this Agreement;and

 

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

 

to the extentnot cancelled, reduced or transferred by it under this Agreement.

 

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

 

“**Revolving I****Outstandings**”means at any time, the aggregate of the Base Currency Amounts of theoutstanding Revolving Facility I Loans and the amount of the maximum actual andcontingent liabilities of the Lenders in respect of each outstanding Letter ofCredit and Bank Guarantee issued under Revolving Facility I.

 

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“**Revolving****FacilityII**” means the revolving loan, letter of credit and bank guaranteefacility made available under this Agreement as described in paragraph (h) ofClause 2.1 (*TheFacilities*).

 

“**Revolving****FacilityII Commitment**” means:

 

(a)                                      in relation to an Original Lender, the amount in the Base Currencyset opposite its name under the heading “Revolving Facility II Commitment” inPart II of Schedule 1 (*The Closing Parties*) and the amount of anyother Revolving Facility II Commitment transferred to it under this Agreement;and

 

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

 

to the extentnot cancelled, reduced or transferred by it under this Agreement.

 

“**Revolving****FacilityII Loan**” means a loan made or to be made under the RevolvingFacility II or the principal amount outstanding for the time being of thatloan.

 

“**Revolving II****Outstandings**”means at any time, the aggregate of the Base Currency Amounts of theoutstanding Revolving Facility II Loans and the amount of the maximum actualand contingent liabilities of the Lenders in respect of each outstanding Letterof Credit and Bank Guarantee issued under Revolving Facility II.

 

“**RolloverLoan**” means one or more Revolving Facility Loans made under the sameRevolving Facility:

 

(a)                                      made or to be made on the same day that (i) a maturing RevolvingFacility Loan under that same Revolving Facility is due to be repaid or (ii) ademand in respect of either a Letter of Credit or a Bank Guarantee under thatsame Revolving Facility is due to be met;

 

(b)                                     the aggregate amount of which is equal to or less than the maturingRevolving Facility Loan or, as the case may be, Letter of Credit or Bank Guaranteedue to be met;

 

(c)                                      in the same currency as the maturing Revolving Facility Loan (unlessit arose as a result of the operation of Clause 6.2 (*Unavailability of a currency*)),Letter of Credit or Bank Guarantee; and

 

(d)                                     made or to be made for the purpose of:

 

(i)                        refinancing amaturing Revolving Facility Loan under that same Revolving Facility; or

 

(ii)                     satisfying anydemand made by the Agent under Clause 8.1 (*Demands under Letters of Credit and Bank Guarantees*)pursuant to a drawing under a Letter of Credit or claim under a Bank Guaranteeissued under that same Revolving Facility.

 

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“**Sale**”means a sale or disposal (whether in a single transaction or a series ofrelated transactions) of all or substantially all of the shares and/or assetsof the Group **provided that** the disposal of 662/3% of the sharesin Newco 2 to Hoechst Newco 3 as a result of, and on the terms of, thetransactions expressly contemplated in the Business Combination Agreement shallbe deemed not to be a Sale.

 

“**Sale and Leaseback Transaction**” means thesale and leaseback transaction entered into by MGG, Messer Griesheim ZweiteVermögensverwaltungs GmbH and Messer Grisheim Erste Vermögensverwaltungs GmbHpursuant to the following documents which were delivered to the Agent on orabout 23 December 2002:

 

(a)                                      sale and purchase agreement dated 20 December 2002 between MGG andMesser Griesheim Zweite Vermögensverwaltungs GmbH under which MGG transfers itsresidual rights in certain assets to  MesserGriesheim Zweite Vermögensverwaltungs GmbH;

 

(b)                                     lease agreement dated 20 December 2002 between MGG and MesserGriesheim Zweite Vermögensverwaltungs GmbH under which Messer Griesheim ZweiteVermögensverwaltungs GmbH grants MGG the right to operate such assets;

 

(c)                                      sale and purchase agreement dated 20 December 2002 between MGG andMesser Griesheim Erste Vermögensverwaltungs GmbH under which MGG transfers itsrights relating to certain trademarks to Messer Griesheim ErsteVermögensverwaltungs GmbH; and

 

(d)                                     licence agreement dated 20 December 2002 between  MGG and Messer Griesheim ErsteVermögensverwaltungs GmbH under which Messer Griesheim ErsteVermögensverwaltungs GmbH grants a licence to MGG to use such trademarks.”

 

“**Screen Rate**”means:

 

(a)                                      in relation to LIBOR, the British Bankers’ Association InterestSettlement Rate for the relevant currency and period; and

 

(b)                                     in relation to EURIBOR, the percentage rate per annum determined bythe Banking Federation of the European Union for the relevant period,

 

displayed onthe appropriate page of the Telerate screen. If the agreed page is replaced orservice ceases to be available, the Agent may specify another page or servicedisplaying the appropriate rate after consultation with the Obligor’s Agent andthe Lenders.

 

“**Security**”means a mortgage, charge, pledge, lien or other security interest securing anyobligation of any person or any other agreement or arrangement having a similareffect.

 

“**SecurityDocuments**” means:

 

(a)                                      each security document referred to in paragraph 5 of Part I ofSchedule 2 (*Conditions Precedent*); and

 

(b)                                     any other document entered into by any member of the Group creatingor evidencing Security for all or any part of the obligations of the Obligorsor any of them under any

 

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of the Finance Documents or the Mezzanine FinanceDocuments or the Direct Mezzanine Refinancing Facility.

 

“**SecurityParty**” has the meaning given to it in Clause 23.30 (*GuarantorGroup and Security Coverage*).

 

“**SelectionNotice**” means a notice substantially in the form set out in Part IIof Schedule 3 (*Requests*) given in accordance with Clause 11 (*InterestPeriods and Terms*) or Clause 6.1 (*Selection of currency*) inrelation to a Term Facility.

 

“**Shareholders’Agreement**” means the agreement dated 31 December 2000 between theInitial Sponsors and MIG (as amended by an amendment agreement made on or priorto the Closing Date in the agreed form), setting out the terms of the InitialSponsors’ and MIG’s rights and obligations in respect of their shareholdings inthe Company.

 

“**SingaporeSPV**” means DIOGENES Neunzehnte Vermogensverwaltungs GmbH, a newlyincorporated limited liability company in which pursuant to the terms of theSingapore Separation Agreement MGG will be a shareholder and which will holdthe interest in Messer Singapore and Syngas currently held by MGG.

 

“**SingaporeSeparation Agreement**” means the formation, funding and shareholdersagreement in the agreed form made on or about the date hereof between, amongstothers, MGG, the Vendor, MIG, Singapore SPV, the Company and Aventis inrelation to (amongst other things) the sale by MGG to Singapore SPV of all ofMGG’s shares in Syngas and Messer Singapore.

 

“**Syngas**”means Singapore Syngas Pte. Limited, a company incorporated in Singapore whichat the date hereof is an MGG Joint Venture.

 

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

 

“**SubordinationAgreement**” means:

 

(a)                                      any High Yield Subordination Agreement;

 

(b)                                     any Newco 2 Loan Subordination Agreement;

 

(c)                                      the China Subordination Agreement;

 

(d)                                     any subordination agreement subordinating Financial Indebtednessreferred to in paragraph (d) of the definition of Permitted Indebtedness; and

 

(e)                                      any Exchange Notes Subordination Agreement.

 

“**Subsidiary**”means, in relation to any company or corporation, a company or corporation:

 

(a)                                      which is controlled, directly or indirectly, by the first mentionedcompany or corporation;

 

(b)                                     more than half the issued share capital of which is beneficiallyowned, directly or indirectly by the first mentioned company or corporation; or

 

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(c)                                      which is a Subsidiary of another Subsidiary of the first mentionedcompany or corporation,

 

and for thispurpose, a company or corporation shall be treated as being controlled byanother if that other company or corporation is able to direct its managementand policies and/or to control the composition of its board of directors orequivalent body.

 

“**SyndicationDates**” means:

 

(a)                                      the date notified by the Bookrunners to the Obligor’s Agent at leastfive Business Days prior to such date as the day on which primary syndicationof the Facilities is to be completed; and

 

(b)                                     the date notified by the Bookrunners to the Obligor’s Agent at leastfive Business Days prior to such date as the day on which general syndicationof the Facilities is to be completed,

 

each such datebeing one on which one or more financial institutions become Parties to thisAgreement as Lenders as part of such syndication **provided that** eachSyndication Date shall not be more than 6 Months after the Closing Date.

 

“**SyndicationLetter**” means the letter from the Arrangers to MGG, Allianz CapitalPartners GmbH and Goldman Sachs Capital Partners 2000, L.P. dated on or aboutthe date hereof headed “Senior Syndication Letter”.

 

“**TARGET**”means Trans-European Automated Real-time Gross Settlement Express Transferpayment system.

 

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

 

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

 

“**Taxes Act**”means the Income and Corporation Taxes Act 1988.

 

“**Term**”means, in relation to any Letter of Credit or Bank Guarantee, the period fromits Utilisation Date until its Expiry Date.

 

“**TermDisposal****Facility**” means the term loan facility madeavailable under this Agreement as described in paragraph (a) of Clause 2.1 (*TheFacilities*).

 

“**TermDisposal****Facility Commitment**” means:

 

(a)                                      in relation to an Original Lender, the amount in the Base Currencyset opposite its name under the heading “Term Disposal Facility Commitment” inPart II of Schedule 1 (*The Closing Parties*) and the amount of anyother Term Disposal Facility Commitment transferred to it under this Agreement;and

 

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

 

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to the extentnot cancelled, reduced or transferred by it under this Agreement.

 

“**TermDisposal****Facility Loan**” means a loan made or to bemade under the Term Disposal Facility or the principal amount outstanding forthe time being of that loan.

 

“**TermDisposal Facility Repayment Date**” means the date falling 24 Monthsafter the Closing Date.

 

“**TermFacilities**” means the Term Disposal Facility and the Term RefinancingFacilities.

 

“**TermFacility Loan**” means a Term Disposal Facility Loan, a Term AFacility Loan, a Term B Euro Facility Loan, a Term B Dollar Facility Loan, aTerm C Euro Facility Loan or a Term C Dollar Facility Loan.

 

“**TermRefinancing Facilities**” means the Term A Facility, the Term B EuroFacility, the Term B Dollar Facility, the Term C Euro Facility and the Term CDollar Facility.

 

“**TermRefinancing Facility Loan**” means any Term Facility Loan other than aTerm Disposal Facility Loan.

 

“**Term A Facility**”means the term loan facility made available under this Agreement as describedin paragraph (b) of Clause 2.1 (*The Facilities*).

 

“**Term AFacility Commitment**” means:

 

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

 

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

 

to the extentnot cancelled, reduced or transferred by it under this Agreement.

 

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

 

“**Term AFacility Repayment Date**” means each of the dates specified in thetable set out in paragraph (a) of Clause 7.2 (*Repayment of Term A Facility**Loans*)as a Repayment Date, but if any such date is not a Business Day, then thatRepayment Date shall be deemed to be the immediately succeeding Business Day(if that succeeding Business Day falls in the same calendar month) or (if itdoes not) the immediately preceding Business Day.

 

“**Term AFacility Repayment Instalment**” means each instalment for repaymentof the Term A Facility Loans referred to in Clause 7.2 (*Repayment of Term A Facility Loans*).

 

“**Term BDollar Facility**” means the term loan facility made available underthis Agreement as described in paragraph (c) of Clause 2.1 (*TheFacilities*).

 

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“**Term BDollar Facility Commitment**” means:

 

(a)                                      in relation to an Original Lender, the amount in dollars setopposite its name under the heading “Term B Dollar Facility Commitment” in PartII of Schedule 1 (*The Closing Parties*) and the amount of any other Term BDollar Facility Commitment transferred to it under this Agreement; and

 

(b)                                     in relation to any other Lender, the amount in dollars of any Term BDollar Facility Commitment transferred to it under this Agreement,

 

to the extentnot cancelled, reduced or transferred by it under this Agreement.

 

“**Term BDollar Facility Loan**” means a loan made or to be made under the TermB Dollar Facility or the principal amount outstanding for the time being ofthat loan.

 

“**Term BDollar Facility Repayment Instalment**” means each instalment forrepayment of the Term B Dollar Facility Loans referred to in Clause 7.3 (*Repayment ofTerm B Dollar Facility Loans*).

 

“**Term B EuroFacility**” means the term loan facility made available under thisAgreement as described in paragraph (d) of Clause 2.1 (*The Facilities*).

 

“**Term B EuroFacility Commitment**” means:

 

(a)                                      in relation to an Original Lender, the amount in euros set oppositeits name under the heading “Term B Euro Facility Commitment” in Part II ofSchedule 1 (*TheClosing Parties*) and the amount of any other Term B Euro FacilityCommitment transferred to it under this Agreement; and

 

(b)                                     in relation to any other Lender, the amount in euros of any Term BEuro Facility Commitment transferred to it under this Agreement,

 

to the extentnot cancelled, reduced or transferred by it under this Agreement.

 

“**Term B EuroFacility Loan**” means a loan made or to be made under the Term B EuroFacility or the principal amount outstanding for the time being of that loan.

 

“**Term B EuroFacility Repayment Instalment**” means each instalment for repaymentof the Term B Euro Facility Loans referred to in Clause 7.4 (*Repayment ofTerm B Euro Facility Loans*).

 

“**Term BFacilities**” means the Term B Dollar Facility and the Term B EuroFacility.

 

“**Term BFacility Repayment Date**” means each of the days which are 90 and 96Months after the Base Date.

 

“**Term CDollar Facility**” means the dollar term loan facility made availableunder this Agreement as described in paragraph (f) of Clause 2.1 (*TheFacilities*).

 

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“**Term CDollar Facility Commitment**” means:

 

(a)                                      in relation to an Original Lender, the amount in dollars setopposite its name under the heading “Term C Dollar Facility Commitment” in PartII of Schedule 1 (*The Closing Parties*) and the amount of any other Term CDollar Facility Commitment transferred to it under this Agreement; and

 

(b)                                     in relation to any other Lender, the amount in dollars of any Term CDollar Facility Commitment transferred to it under this Agreement,

 

to the extentnot cancelled, reduced or transferred by it under this Agreement.

 

“**Term CDollar Facility Loan**” means a loan made or to be made under the TermC Dollar Facility or the principal amount outstanding for the time being ofthat loan.

 

“**Term CDollar Facility Repayment Instalment**” means each instalment forrepayment of the Term C Dollar Facility Loans referred to in Clause 7.6 (*Repayment ofTerm C Dollar Facility Loans*).

 

“**Term C EuroFacility**” means the term loan facility made available under thisAgreement as described in paragraph (e) of Clause 2.1 (*The Facilities*).

 

“**Term C EuroFacility Commitment**” means:

 

(a)                                      in relation to an Original Lender, the amount in euros set oppositeits name under the heading “Term C Euro Facility Commitment” in Part II ofSchedule 1 (*TheClosing Parties*) and the amount of any other Term C Euro FacilityCommitment transferred to it under this Agreement; and

 

(b)                                     in relation to any other Lender, the amount in euros of any Term CEuro Facility Commitment transferred to it under this Agreement,

 

to the extentnot cancelled, reduced or transferred by it under this Agreement.

 

“**Term C EuroFacility Loan**” means a loan made or to be made under the Term C EuroFacility or the principal amount outstanding for the time being of that loan.

 

“**Term C EuroFacility Repayment Instalment**” means each instalment for repaymentof the Term C Euro Facility Loans referred to in Clause 7.5 (*Repayment ofTerm C Euro Facility Loans*).

 

“**Term CFacilities**” means the Term C Euro Facility and the Term C DollarFacility.

 

“**Term CFacility Repayment Date**” means each of the days which are 102  and 108 Months after the Base Date.

 

“**TerminationDate**” means:

 

(a)                                      in relation to the Term Disposal Facility, the day which is 24Months after the Closing Date;

 

(b)                                     in relation to the Term A Facility, the day which is 84 Months afterthe Base Date;

 

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(c)                                      in relation to the Term B Dollar Facility, the day which is 96Months after the Base Date;

 

(d)                                     in relation to the Term C Euro Facility and the Term C DollarFacility, the Final Maturity Date;

 

(e)                                      in relation to each Revolving Facility, the day which is 84 Monthsafter the Base Date.

 

“**TotalCommitments**” means the aggregate of the Total Term Disposal FacilityCommitments, the Total Term A Facility Commitments, the Total Term B EuroFacility Commitments, the Total Term B Dollar Facility Commitments, the TotalTerm C Euro Facility Commitments, the Total Term C Dollar Facility Commitments,the Total Revolving Facility I Commitments and the Total Revolving Facility IICommitments, being the aggregate of EUR1,050,000,000 and $540,000,000 at thedate of this Agreement.

 

“**Total DebtRelief Amount**” means, at any time, the aggregate of all Debt ReliefAmounts at such time in relation to all Permitted Disposals made after the dateof this Agreement up to such time.

 

“**TotalNon-Indemnified Unconsolidated Debt**” means, at any time, theaggregate amount (without double counting) of Unconsolidated Debt at that timewhich is not Indemnified Unconsolidated Debt at such time.

 

“**TotalRevolving Facility I Commitments**” means the aggregate of theRevolving Facility I Commitments, being EUR260,000,000 at the date of thisAgreement.

 

“**TotalRevolving Facility II Commitments**” means the aggregate of theRevolving Facility II Commitments, being EUR50,000,000 at the date of thisAgreement.

 

“**Total TermDisposal Facility Commitments**” means the aggregate of the TermDisposal Facility Commitments, being $225,000,000 at the date of thisAgreement.

 

“**Total Term AFacility Commitments**” means the aggregate of the Term A FacilityCommitments, being EUR400,000,000 at the date of this Agreement.

 

“**Total Term BDollar Facility Commitments**” means the aggregate of the Term BDollar Facility Commitments, being $153,000,000 at the date of this Agreement.

 

“**Total Term BEuro Facility Commitments**” means the aggregate of Term B Euro FacilityCommitments, being EUR170,000,000 at the date of this Agreement.

 

“**Total Term CDollar Facility Commitments**” means the aggregate of the Term CDollar Facility Commitments, being $162,000,000 at the date of this Agreement.

 

“**Total Term CEuro Facility Commitments**” means the aggregate of the Term C EuroFacility Commitments, being EUR170,000,000 at the date of this Agreement.

 

“**TransactionDocuments**” means the Acquisition Documents, the Finance Documents,the Mezzanine Finance Documents, the High Yield Documents any documentsrelating to the Direct Mezzanine Refinancing and any Exchange Notes Documents.

 

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“**Transaction****Security**”means the security from time to time constituted by or pursuant to the SecurityDocuments.

 

“**TransferCertificate**” means a certificate substantially in one of the formsset out in Part I or Part II of Schedule 5 (*Form of Transfer Certificates*)or any other form agreed between the Agent and the Obligor’s Agent.

 

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

 

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

 

(b)                                     the date on which the Agent executes the Transfer Certificate andthe transfer is recorded by the Agent in the Register.

 

“**TreasuryBorrower**” means Messer Finance S.A. and any other entity identifiedby the Obligor’s Agent as a Treasury Borrower prior to the first Utilisationunder this Agreement, such company to be a newly incorporated member of the MGGGroup which is incorporated with limited liability in The Netherlands orLuxembourg and is formed to be a finance company (and not a trading company)performing (along with MGG or, as the case may be, Debtco) the treasuryfunction for the MGG Group **provided that** there shall not be more thantwo Treasury Borrowers.

 

“**TreasuryBorrower Loan Agreement**” means a loan agreement entered into by aTreasury Borrower as lender with a member of the MGG Group in one of the agreedforms.

 

“**TreasuryTransaction**” means any currency or interest purchase, cap or collaragreement, forward rate agreements, interest rate or currency future or optioncontract, foreign exchange or currency purchase or sale agreement, interestrate swap, currency swap or combined interest rate and currency swap agreementand any other similar agreement.

 

“**UnconsolidatedDebt**” means any Financial Indebtedness of any member of the MGGGroup under any guarantee or indemnity given by any member of the MGG Group inrespect of Financial Indebtedness of a person who is not a member of the MGGGroup.

 

“**UnconsolidatedSubsidiary**” means, in relation to a company or corporation, aSubsidiary of such company or corporation which is not a ConsolidatedSubsidiary.

 

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

 

“**US Borrower**”means a Borrower whose jurisdiction of incorporation is a state of the UnitedStates of America or the District of Columbia.

 

“**US GAAP**”means generally accepted accounting principles and practices in the UnitedStates of America.

 

“**US GroupMember**” means any member of the Group whose Relevant Jurisdiction isthe United States of America (or any state thereof) or the District ofColumbia.

 

“**US Guarantor**”means a Guarantor whose Relevant Jurisdiction is a state of the United Statesof America or the District of Columbia.

 

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“**Utilisation**”means a utilisation of a Facility by way of Loan or (in the case of a RevolvingFacility) Letter of Credit or Bank Guarantee.

 

“**UtilisationDate**” means the date of a Utilisation, being the date on which therelevant Loan is to be made or the relevant Letter of Credit or Bank Guaranteeissued.

 

“**UtilisationRequest**” means a notice substantially in the form set out in Part Iof Schedule 3 (*Requests*).

 

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

 

“**Vendor**”means Hoechst AG.

 

“**Vendor MGGShares**” means the shares representing two thirds of the nominalvalue of the issued share capital of MGG, held by the Vendor at the date ofthis Agreement.

## ** **

## **1.2**                           Construction

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

 

(i)                        the “**Agent**”,an “**Arranger**”,the “**SecurityTrustee**”, any “**Hedge Counterparty**”, any “**FrontingBank**” or any “**Lender**” or any other person shall beconstrued so as to include it and any subsequent successors and permittedtransferees and assigns in accordance with their respective interests;

 

(ii)                     a document beingin the “**agreedform**” is a reference to a document which is either initialled assuch (or agreed in writing as such) on or before the Closing Date for thepurposes of identification by or on behalf of the Obligor’s Agent and theArrangers or Agent or is executed on or before the date of this Agreement byany of the Obligors and the Arrangers or Agent or, if not so executed orinitialled (or so agreed in writing), is in form and substance reasonablysatisfactory to the Agent;

 

(iii)                  “**assets**”includes present and future properties, revenues and rights of everydescription;

 

(iv)                 the “**Europeaninterbank****market**” means the interbank market for eurooperating in Participating Member States;

 

(v)                    a “**FinanceDocument**” or any other agreement or instrument is a reference tothat Finance Document or other agreement or instrument as amended or novated;

 

(vi)                 “**indebtedness**” includes anyobligation (whether incurred as principal or as surety) for the payment orrepayment of money, whether present or future, actual or contingent;

 

(vii)              a Lender’s “**participation**”,in relation to a Letter of Credit or Bank Guarantee, shall be construed as areference to the rights and obligations of that Lender in relation to thatLetter of Credit or Bank Guarantee as are expressly set out in this Agreement;

 

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(viii)           a “**person**” includes any person,firm, company, corporation, government, state or agency of a state or anyassociation, trust, fund or other entity or partnership (whether or not havingseparate legal personality) of two or more of the foregoing;

 

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

 

(x)                      a “**wholly-ownedSubsidiary**” of a company or corporation shall be construed as areference to any company or corporation more than 85% of the voting and issuedshare capital of which is beneficially owned, directly or indirectly, by thefirst-mentioned company or corporation;

 

(xi)                   a provision of lawis a reference to that provision as amended or re-enacted; and

 

(xii)                a time of day is areference to London time.

 

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

 

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

 

(d)                                     A Default (other than an Event of Default) is “**continuing**” if it has notbeen remedied or waived and an Event of Default is “**continuing**” if it has notbeen remedied or waived.

 

(e)                                      A Utilisation is requested by a Borrower if that Borrower requestssuch Utilisation itself or the Obligor’s Agent requests such Utilisationexpressly on behalf of that Borrower.

## ** **

## **1.3**                           Currency Symbols and Definitions

“**$**”and “**dollars**”denote lawful currency of the United States of America, “**£**” and “**sterling**” denotes lawfulcurrency of the United Kingdom, “**EUR**” and “**euro**” means the singlecurrency unit of the Participating Member States, “**DM**” means the nationalcurrency unit of Germany as at the date of this Agreement and “**Swiss Francs**”denote lawful currency of Switzerland.

## ** **

## **1.4**                           Thirdparty rights

(a)                                      Except as expressly provided in a Finance Document, the terms of aFinance Document may be enforced only by a party to it and the operation of theContracts (Rights of Third Parties) Act 1999 is excluded.

 

(b)                                     Notwithstanding any provision of any Finance Document, the Partiesto a Finance Document do not require the consent of any third party to rescindor vary any Finance Document at any time.

 

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**SECTION 2**

** **

**THE FACILITIES**

# ** **

# **2.**                                 THE FACILITIES

## ** **

## **2.1**                           The Facilities

Subjectto the terms of this Agreement, the Lenders make available the Facilitiesreferred to below to the Borrowers specified below in relation to each suchFacility:

 

(a)                                      (to MGG, Messer Griesheim Industries, Inc., any Treasury Borrowerand, during the Debtco Structure Period, Debtco) a multicurrency term loandisposal facility in an aggregate amount equal to the Total Term DisposalFacility Commitments;

 

(b)                                     (to MGG and any Treasury Borrower and, during the Debtco StructurePeriod, Debtco) a multicurrency term loan refinancing facility in an aggregateamount equal to the Total Term A Facility Commitments;

 

(c)                                      (to Messer Griesheim Industries, Inc.) a dollar term loanrefinancing facility in an aggregate amount equal to the Total Term B DollarFacility Commitments;

 

(d)                                     (to MGG and any Treasury Borrower and, during the Debtco StructurePeriod, Debtco) a euro term refinancing facility in an aggregate amount equalto the Total Term B Euro Facility Commitments;

 

(e)                                      (to MGG and any Treasury Borrower and, during the Debtco StructurePeriod, Debtco) a euro term loan refinancing facility in an aggregate amountequal to the Total Term C Euro Facility Commitments;

 

(f)                                        (to Messer Griesheim Industries, Inc.) a dollar term loanrefinancing facility in an aggregate amount equal to the Total Term C DollarFacility Commitments;

 

(g)                                     (to all of the Borrowers) a multicurrency revolving loan, letter ofcredit and guarantee facility in an aggregate amount equal to the Total RevolvingFacility I Commitments;

 

(h)                                     (to all of the Borrowers other than any US Borrower) a multicurrencyrevolving loan, letter of credit and guarantee facility in an aggregate amountequal to the Total Revolving Facility II Commitments; and

 

(i)                                         in addition, if a Lender and the Obligor’s Agent agree and subjectas provided in Clause 2.4 (*AncillaryFacilities*) and to the terms in the relevant Ancillary Documents, aLender may provide an Ancillary Facility or Ancillary Facilities on abi-lateral basis to a Borrower in place of all or part of that Lender’sAvailable Commitment in relation to Revolving Facility I or, as the casemay be, Revolving Facility II

## ** **

## **2.2**                           Lenders’ and Fronting Banks’ rights and obligations

(a)                                      The obligations of each Lender and each Fronting Bank under theFinance Documents are several.  Failureby a Lender or a Fronting Bank to perform its obligations under the FinanceDocuments does not affect the obligations of any other Party under the 

 

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Finance Documents. No Finance Party is responsible for the obligations of any other FinanceParty under the Finance Documents.

 

(b)                                     The rights of each Lender and each Fronting Bank under or inconnection with the Finance Documents are separate and independent rights andany debt arising under the Finance Documents to a Lender or a Fronting Bankfrom an Obligor shall be a separate and independent debt.

 

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

## ** **

## **2.3**                           Ancillary Lenders’ rights and obligations

(a)                                      The obligations of each Ancillary Lender under the Finance Documentsare several.  Failure by an AncillaryLender to perform its obligations under the Finance Documents does not affectthe obligations of any other Party under the Finance Documents. No FinanceParty is responsible for the obligations of any other Finance Party under theFinance Documents.

 

(b)                                     The rights of each Ancillary Lender under or in connection with theFinance Documents are separate and independent rights and any debt arisingunder the Finance Documents to an Ancillary Lender from an Obligor shall be aseparate and independent debt.

## ** **

## **2.4**                           AncillaryFacilities

(a)                                      An Ancillary Facility may be made available to a Borrower by aLender which is a Lender under a Revolving Facility by way of bi-lateraloverdraft facilities in accordance with the provisions of this Clause 2.4.  More than one Ancillary Facility may existat any time.

 

(b)                                     The Obligor’s Agent may request an Ancillary Facility by delivery tothe Agent of a notice in writing not less than 5 Business Days (or such shorterperiod as the Agent may agree) prior to the proposed commencement date for theAncillary Facility specifying:

 

(i)                        the proposedBorrowers which may use that Ancillary Facility;

 

(ii)                     the proposedcommencement date for that Ancillary Facility (which shall be a Business Daywithin the Availability Period for the Relevant Revolving Facility);

 

(iii)                  the proposed expirydate for that Ancillary Facility (which must be a Business Day on or prior tothe Termination Date for the Relevant Revolving Facility);

 

(iv)                 the proposedAncillary Lender;

 

(v)                    the maximum amountof the Ancillary Commitment under that Ancillary Facility;

 

(vi)                 whether thatAncillary Facility is proposed to be provided in place of a Lender’s AvailableCommitment under Revolving Facility I or Revolving Facility II (andfor the avoidance of doubt any one Ancillary Facility may only be provided in

 

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place of the Available Commitment under one RevolvingFacility and not both Revolving Facilities); and

 

(vii)              the proposed currency orcurrencies of that Ancillary Facility.

 

(c)                                      The Obligor’s Agent shall promptly provide the Agent with such otherdetails as to the nature, amount and operation of the proposed AncillaryFacility as the Agent may reasonably require.

 

(d)                                     The Agent shall promptly notify each Lender upon receipt of a noticedelivered pursuant to paragraph 2.4(b) above.

 

(e)                                      The proposed Ancillary Lender shall notify the Agent in writingwhether it agrees to make that Ancillary Facility available and whether suchAncillary Facility is to be provided from its Available Commitment underRevolving Facility I or Revolving Facility II (and, for the avoidanceof doubt it may not be provided from a combination of its Available Commitmentunder both Revolving Facilities).  NoLender shall be obliged to make an Ancillary Facility available.

 

(f)                                        The Ancillary Lender will promptly upon it being committed toprovide an Ancillary Facility notify the Obligor’s Agent and the Agent of theamount of its Ancillary Commitment in relation to that Ancillary Facility.  The Ancillary Commitment shall be themaximum amount of Ancillary Outstandings which would be outstanding under thatAncillary Facility assuming that the facility is available and fullyutilised.  In the event that anAncillary Lender fails to deliver this notice, the Agent may estimate theamount of the Ancillary Commitment until such notice is delivered.

 

(g)                                     If the proposed Ancillary Lender agrees to make available arequested Ancillary Facility, that Ancillary Facility shall be made availableby that Ancillary Lender on the applicable commencement date if:

 

(i)                        the conditionsset out in this Agreement have been met;

 

(ii)                     that AncillaryFacility complies with the requirements of this Clause 2.4 (*AncillaryFacilities*);

 

(iii)                  the Agent hasnotified the Obligor’s Agent and the proposed Ancillary Lender in writing thatit consents to that Ancillary Facility (such consent not to be unreasonablywithheld or delayed);

 

(iv)                 the AvailableCommitment of that Ancillary Lender in relation to the Relevant RevolvingFacility is, immediately prior to commencement of that Ancillary Facility, atleast equal to the Ancillary Commitment for that Ancillary Facility;

 

(v)                    the proposedAncillary Commitment for that Ancillary Facility when aggregated with theAncillary Commitment of each other outstanding Ancillary Facility, does notexceed EUR50,000,000 (or its equivalent from time to time in an OptionalCurrency) (or such higher amount as the Majority Lenders agree); and

 

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(vi)                 the Borrowerconcerned has completed any Ancillary Documents required by that AncillaryLender to be completed before the commencement date of that Ancillary Facility.

 

(h)                                     Each Borrower of an Ancillary Facility shall complete such mandatesor other documentation as the Ancillary Lender of that Ancillary Facility mayreasonably require.

 

(i)                                         Subject to Clauses 9.1 (*Illegality*) and 9.10 (*Voluntary cancellation*) theterms governing the operation of any Ancillary Facility (including the terms ofany counter-indemnity required in connection with that facility) shall be thosedetermined by agreement between the Ancillary Lender and the Borrowerconcerned, **provided that**such terms are based upon normal commercialterms, save as may be varied by this Agreement.

 

(j)                                         In the case of inconsistency between any term of an Ancillary Facilityand of this Agreement, the terms of this Agreement shall prevail.

 

(k)                                      Any amendment to an Ancillary Facility or any proposed increase orreduction in the Ancillary Commitment relating to an Ancillary Facility shallbe subject to the terms of this Clause 2.4 (*Ancillary Facilities*).

 

(l)                                         The rate and time of payment of interest, commission, fees and anyother remuneration in respect of each Ancillary Facility shall be determined byagreement between the Ancillary Lender and the Borrower concerned based uponnormal market rates and terms.

 

(m)                                   A reference in this Agreement to a Fee Letter shall include theprovisions of any document setting out the agreement between the AncillaryLender and the Borrower concerned in respect of interest, commission, fees andother remuneration.

 

(n)                                     Accrued interest, commission, fees and other remuneration in respectof an Ancillary Facility shall also be payable to the Ancillary Lender oncancellation of the Ancillary Commitment in respect of that Ancillary Facilityat the time the cancellation is effective if the Ancillary Commitment iscancelled in full.

 

(o)                                     The Borrower concerned shall pay to the relevant Ancillary Lender afee computed at the rate applicable to the Relevant Revolving Facility underparagraph (c) of Clause 13.1 (*Commitment fee*) on the unused portion ofany Ancillary Facility (being the Ancillary Commitment applicable to thatAncillary Facility minus the Ancillary Outstandings under that AncillaryFacility) for the period for which that Ancillary Facility is made available bythat Ancillary Lender.

 

(p)                                     The accrued commitment fee in respect of an Ancillary Facility ispayable on the last day of each successive period of three Months which endsduring the period for which that Ancillary Facility is available, on the lastday of the availability period for that Ancillary Facility and on the cancelledamount of the Ancillary Lender’s Ancillary Commitment for that AncillaryFacility at the time the cancellation is effective.

 

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(q)                                     On the last day of the availability period in relation to anAncillary Facility, any commitment in relation thereto shall be automaticallyreduced to zero, and all Ancillary Outstandings and other liabilities of anyBorrower thereunder shall be repaid.

 

(r)                                        The Obligor’s Agent may at any time prior to the occurrence of anEvent of Default, request the reduction or cancellation of an AncillaryFacility by delivery of a notice in writing to the Agent and the AncillaryLender providing that Ancillary Facility, specifying the Ancillary Facility andthe proposed cancellation date.  Thatnotice must be delivered not less than ten Business Days (or such shorterperiod as the Ancillary Lender and Agent may agree) before the proposedreduction or cancellation date. With effect from the proposed reduction orcancellation date, the relevant Ancillary Commitment shall be reduced by theamount of such reduction or cancellation, the Ancillary Facility shall bereduced or cancelled (as applicable) by such amount and (to the extentnecessary) the Ancillary Outstandings under that Ancillary Facility shall berepaid.  An Ancillary Facility may notbe reduced or cancelled in any other way prior to the occurrence of an Event ofDefault without the consent of the relevant Ancillary Lender, the Agent and theObligor’s Agent.

 

(s)                                      On the date of any reduction in the available Ancillary Facilitypursuant to paragraphs (q) or (r) above or otherwise, the Available Commitmentof the applicable Ancillary Lender under the Relevant Revolving Facility shallbe increased by an amount equal to the amount by which such AncillaryCommitment is cancelled or reduced, subject to any other cancellation orrepayment obligation effected pursuant to the terms and conditions of theFinance Documents.  In relation to thefirst Loans made under the Relevant Revolving Facility following such increaseof such Available Commitment of a Lender, that Lender shall participate inthose Loans such that (to the extent possible) following the making of thoseLoans its pro rata share in the Outstandings under the Relevant RevolvingFacility is equal to its pro rata share of the total Available Commitments ofall the Lenders in the Relevant Revolving Facility.

 

(t)                                        The Borrowers concerned shall ensure that the Ancillary Commitmentsof each Ancillary Lender shall terminate and all Ancillary Outstandings arerepaid in full no later than the Termination Date for the Relevant RevolvingFacility.

 

(u)                                     Each Borrower and each Ancillary Lender agree with and for thebenefit of each Lender that the Ancillary Outstandings under any AncillaryFacility provided by that Ancillary Lender shall not exceed the AncillaryCommitment applicable to that Ancillary Facility and that only Borrowers mayuse an Ancillary Facility and that only Borrowers may use an AncillaryFacility.

 

(v)                                     Upon the occurrence of an Event of Default which is continuing, thefollowing terms and conditions in this paragraph (v) shall apply.

 

(a)                     Subject to the other provisions of this paragraph (v),

#####  

##### (i)                     an AncillaryLender shall not have the right to cancel commitments or demand a payment of,or in relation to (including, without limitation, the

 

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##### provisionof cash cover) any Ancillary Outstandings or other liabilities of a Borrowerunder an Ancillary Facility; and

#####  

##### (ii)                  no Borrower shallhave the right to utilise an Ancillary Facility, and no Ancillary Lender shallmake available further Ancillary Outstandings thereunder.

 

(b)                    Upon the delivery of a notice by the Agent in accordance with Clause24.15 (*Acceleration*):

#####  

##### (i)                     cancelling theTotal Commitments, the Agent may (and shall if so directed by the MajorityLenders) cancel any unutilised commitment under any Ancillary Facility; and/or

#####  

##### (ii)                  declaring all orpart of the Loans immediately payable on demand, the Agent may (and shall if sodirected by the Majority Lenders) declare all or part of the AncillaryOutstandings immediately payable on demand; and/or

#####  

##### (iii)               declaring all or partof the Loans immediately due and payable, the Agent may (and shall if sodirected by the Majority Lenders) declare all or part of the AncillaryOutstandings immediately due and payable.

 

(c)                     If following the occurrence of an Event of Default, a waiver isgiven or an amendment is made (whether or not subject to certain specifiedconditions) of any of the Finance Documents, to the extent that such Event ofDefault arose under or in connection with an Ancillary Facility, such AncillaryLender must give or make (and to the extent possible shall be deemed to havegiven or made), at the same time, a corresponding waiver or amendment to theAncillary Documents, and the parties to the relevant Ancillary Documents shalldo all such things and execute or procure the execution of all such documentsas the Agent may require to give effect to the terms of this paragraph (v).

 

(d)                    Any payments received by an Ancillary Lender in relation to anAncillary Facility shall be applied in accordance with Clause 31.5 (*PartialPayments*).

 

(w)                                   Upon the delivery of a notice by the Agent in accordance with Clause24.15 (*Acceleration*), notwithstanding the occurrence ofan Event of Default or that any other applicable conditions precedent are notsatisfied and subject to the provisions of this paragraph (w), the Lenders andAncillary Lenders participating in the Relevant Revolving Facility must, amongthemselves, purchase and sell their participations (by way of novation,sub-participation, credit-linked instrument or otherwise) in relation to (a) eachUtilisation under the Relevant Revolving Facility and (b) the AncillaryOutstandings in relation to the Relevant Ancillary Facilities (if any)(together, the “**Transfers**”) such that following the Transfers, each Lendershall participate in the aggregate of Utilisations under the Relevant RevolvingFacility and Ancillary Outstandings under the Relevant Ancillary Facilities *pro rata* to their Commitments in theRelevant Revolving Facility as were outstanding on the date on which the Agentdelivered the notice in accordance with Clause 24.15 (*Acceleration*).  For the

 

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purposes of the Transfers, Utilisations and AncillaryOutstandings shall be valued at par.

 

(x)                                       The Transfers shall be effected promptly with economic effect fromthe date of delivery of a notice by the Agent in accordance with Clause 24.15 (*Acceleration*), so that to the fullest extentreasonably possible following the Transfers, each Lender shall participate ineach of the Utilisations under each Relevant Revolving Facility and each of theAncillary Outstandings under the Relevant Ancillary Facilities *pro rata*to their Commitments in the Relevant Revolving Facility.

 

(y)                                     No consent from any Obligor or Borrower under an Ancillary Facilityis required in connection with the Transfers.

 

(z)                                       The Obligor’s Agent shall indemnify each Finance Party against anycost, loss or liability incurred by that Finance Party in connection with theTransfers, including, without limitation, legal fees and break costs for anyFinance Party.

 

(aa)                                Each Borrower and each Ancillary Lender will, promptly upon requestby the Agent, supply the Agent with any information relating to the operationof each Ancillary Facility (including, without limitation, the Ancillary Outstandings)as the Agent may from time to time reasonably request.  Each Borrower consents to all suchinformation being released to the Agent and the other Finance Parties.

 

(bb)                              Each Borrower under an Ancillary Facility hereby agrees to pay allamounts owing by it under any Ancillary Document to the relevant AncillaryLender in accordance with the provisions of that Ancillary Document (asadjusted by the terms of Clause 2.4 (*AncillaryFacilities*)) and all obligations and liabilities of a Borrower underthe Ancillary Documents shall be treated for all purposes as obligations andliabilities owed under this Agreement.

 

(cc)                                Each Ancillary Lender agrees to the extent it makes availableAncillary Facilities in place of its Available Commitment under both RevolvingFacilities that it shall keep such Ancillary Facilities distinct and separatefrom each other.

# ** **

# **3.**                                 PURPOSE

## ** **

## **3.1**                           Purpose

(a)                                      Each Borrower shall apply all amounts borrowed by it under the TermFacilities either towards the refinancing of Existing Indebtedness and thepayment of the fees payable pursuant to the terms of any Fee Letters and otherexpenses payable in connection with the Finance Documents and the MezzanineFinance Documents or towards the making of Intra-Group Loans the proceeds ofwhich are to be applied to refinance Existing Indebtedness or (during theperiod when the Term Facilities have not been drawn or cancelled in full)towards the general working capital requirements of the MGG Group provided thatthe aggregate of the Base Currency Amounts of all Loans under the TermFacilities used for such general working capital purposes shall not exceed EUR100,000,000.  Amounts borrowed by MesserGriesheim Industries, Inc. (“MGI”) on the Closing Date may be held initially ina specifically identified account of MGI at The Chase Manhattan Bank andamounts borrowed by Messer Finance S.A. on the Closing Date may be heldinitially in an account of Messer Finance S.A.

 

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which is secured in favour of the Finance Partiesunder a Security Document, in each case pending application within 5 BusinessDays of the Closing Date for the purposes specified in the first sentence ofthis paragraph (a). The Deemed Loan referred to in paragraph (d) of Clause 9.11(*Voluntaryprepayment of Term Facility Loans*) shall be used to prepay the TermDisposal Facility in the manner referred to in such paragraph (d).

 

(b)                                     Each Borrower shall apply all amounts borrowed by it and all Lettersof Credit and Bank Guarantees and Ancillary Facilities issued at its requestunder Revolving Facility I towards the general corporate purposes of the MGGGroup.

 

(c)                                      Each Borrower shall apply all amounts borrowed by it and all Lettersof Credit and Bank Guarantees and Ancillary Facilities issued at its requestunder Revolving Facility II to finance or refinance Non-IndemnifiedUnconsolidated Debt **provided that** a Borrower shall be entitledto apply amounts borrowed by it and Letters of Credit and Bank Guarantees andAncillary Facilities issued at its request under Revolving Facility II towardsthe general working capital requirements of the MGG Group if the followingconditions are satisfied at the time of the first such application in relationto any part of Revolving Facility II:

 

(i)                        the Agent hasreceived 5 Business Days prior to such time written confirmation from theObligor’s Agent (together with relevant supporting evidence) that the TotalNon-Indemnified Unconsolidated Debt has been permanently reduced (by reason ofthe expiry of a guarantee or indemnity given by a member of the MGG Group whichis not to be renewed or as a result of the disposal of the MGG Group’s interestin a Joint Venture or Unconsolidated Subsidiary or payment of a sum under sucha guarantee or indemnity by a member of the MGG Group or otherwise but not byreason of a payment from the proceeds of a Revolving Facility II Loan or undera Letter of Credit or Ancillary Facility or Bank Guarantee issued underRevolving Facility II) by a specified amount; and

 

(ii)                     the reduction ofTotal Non-Indemnified Unconsolidated Debt referred to in paragraph (i) abovehas not been used to permit any previous such application and the aggregateamount of (A) the amount to be borrowed and (B) the face amount of suchGuarantee or Letter of Credit or Ancillary Facility to be issued which are tobe so applied is equal to or less than the total amount of such reduction.

## ** **

## **3.2**                           Monitoring

No FinanceParty is bound to monitor or verify the application of any amount borrowed orBank Guarantee or Letter of Credit issued pursuant to this Agreement.

# ** **

# **4.**                                 CONDITIONSOF UTILISATION

## ** **

## **4.1**                           Initial conditions precedent

No Borrowermay deliver a Utilisation Request unless the Agent has received all of thedocuments and other evidence listed in Part I of Schedule 2 (*ConditionsPrecedent*) in form and substance satisfactory to the Agent (actingreasonably).  The Agent shall notify theObligor’s Agent and the Lenders promptly upon being so satisfied.

 

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## **4.2**                           Further conditions precedent

(a)                                      In the case of any Closing Utilisation, the Lenders and the relevantFronting Bank will only be obliged to comply with Clause 5.4 (*Lenders’ andFronting Banks’ Participation*) if on the date of the UtilisationRequest and on the proposed Utilisation Date:

 

(i)                        no ClosingEvent of Default is continuing or would result from the proposed ClosingUtilisation; and

 

(ii)                    the AcquisitionClosing Conditions were satisfied on the Closing Date without being partiallyor entirely waived by the Company or MGG or, notwithstanding the AcquisitionClosing Conditions not having been so satisfied without being partially orentirely waived by the Company or MGG (except in accordance with Clause 23.24 (*Amendments*)),the Company is obliged pursuant to the terms of the Business CombinationAgreement to consummate the MGG Acquisition on the Closing Date;

 

(iii)                 the ClosingRepresentations to be made or deemed to be made by the Obligor’s Agent and eachObligor which is then a Party are true in all material respects.

 

(b)                                     In the case of any Utilisation (other than a Closing Utilisation),the Lenders and the relevant Fronting Bank will only be obliged to comply withClause 5.4 (*Lenders’and Fronting Banks’ participation*) if on the date of the UtilisationRequest and on the proposed Utilisation Date:

 

(i)                        in the case ofa Rollover Loan, no Event of Default is continuing or would result from theproposed Rollover Loan and, in the case of any other Loan, a Letter of Creditor a Bank Guarantee, no Default i**s** continuing orwould result from the proposed Loan, Letter of Credit or Bank Guarantee; and

 

(ii)                     the RepeatingRepresentations to be made or deemed to be made by the Obligor’s Agent and eachObligor which is then a Party are true in all material respects.

 

(c)                                      The Lenders will only be obliged to comply with paragraph (a)(iv) ofClause 6.3 (*Changeof currency*) if, on the first day of an Interest Period, no Defaultis continuing or would result from the change of currency and the RepeatingRepresentations to be made by each Obligor are true in all material respects.

 

(d)                                     In relation to a proposed Letter of Credit or Bank Guarantee, therelevant Fronting Bank will only be obliged to comply with Clause 5.5 (*Completionof Letters of Credit*) if the relevant Fronting Bank and the Agenthave approved the terms of the Letter of Credit or Bank Guarantee (which,unless the Agent otherwise agrees in writing, shall be substantially in theform set out in Schedule 11 (*Form of Bank Guarantee*) or Schedule 12 (*Form ofLetter of Credit*)).

 

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## **4.3**                           Conditions relating to Optional Currencies and theeuro unit

(a)                                      A currency will constitute an Optional Currency in relation to aLoan, Letter of Credit or Bank Guarantee if:

 

(i)                        it is readilyavailable in the amount required and freely convertible into the Base Currencyin the Relevant Interbank Market on the Quotation Day and the Utilisation Datefor that Loan, Letter of Credit or Bank Guarantee; and

 

(ii)                     it is dollars orsterling or Swiss Francs or euro or has been approved by the Agent (acting onthe instructions of all the Lenders) on or prior to receipt by the Agent of therelevant Utilisation Request or Selection Notice for that Loan, Letter ofCredit or Bank Guarantee, save that dollars shall not be an Optional Currencyin relation to a Term Disposal Facility Loan and euro shall not be an OptionalCurrency in relation to any Term A Facility Loan, Revolving Facility Loan,Letter of Credit or Bank Guarantee.

 

(b)                                     If the Agent has received a written request from the Obligor’s Agentfor a currency to be approved under paragraph (a)(ii) above, the Agent willconfirm to the Obligor’s Agent by the Specified Time:

 

(i)                        whether or notthe Lenders have granted their approval; and

 

(ii)                     if approval has beengranted, the minimum amount for any subsequent Utilisation in that currency,which shall be a round number which is approximately the equivalent in thatcurrency of EUR5,000,000.

 

(c)                                      If a Loan, Letter of Credit or Bank Guarantee is to be denominated ineuros it will only be made available in the euro unit, deutschmarks or anyother national currency units of the euro agreed by the Majority Lenders.

## ** **

## **4.4**                           Maximumnumber of Loans, Letters of Credit or Bank Guarantees

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

 

(i)                        fifteen ormore Term Disposal Facility Loans would be outstanding;

 

(ii)                     fifteen or moreTerm A Facility Loan would be outstanding;

 

(iii)                  five or more Term BEuro Facility Loans would be outstanding;

 

(iv)                 five or more Term BDollar Facility Loans would be outstanding;

 

(v)                    five or more TermC Euro Facility Loans would be outstanding;

 

(vi)                 five or more Term CDollar Facility Loans would be outstanding;

 

(vii)              ten or more RevolvingFacility I Loans would be outstanding; or

 

(viii)           ten or more RevolvingFacility II Loans would be outstanding.

 

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(b)                                     A Borrower may not request that a Term Facility Loan be divided if,as a result of the proposed division, ten or more Loans under the relevant TermFacility would be outstanding.

 

(c)                                      Any Loan made by a single Lender under Clause 6.2 (*Unavailabilityof a Currency*) shall not be taken into account in this Clause 4.4.

 

(d)                                     The above provisions of this Clause 4.4 shall not apply to anyUtilisation Request delivered prior to the end of the first one month InterestPeriod relating to any Loan.

## ** **

## **4.5**                           Order of drawing of Facilities

(a)                                      The Facilities may only be drawn in the following order, so that noUtilisation Request may be delivered in relation to any Facility until each ofthe Facilities referred to above it in the following list has either been drawnin full or will have been drawn in full prior to or on the proposed UtilisationDate:

 

(i)            first,the Term C Euro Facility, the Term C Dollar Facility, the Term B Euro Facilityand the Term B Dollar Facility;

 

(ii)           second,the Term A Facility and Term Disposal Facility;

 

(iii)          third,the Revolving Facilities.

 

(b)                                     Notwithstanding the above paragraph (a):

 

(i)                                     Utilisations (“**Relevant Utilisations**”) by way of Lettersof Credit and/or Bank Guarantees may be issued under the Revolving Facilitiesprior to the Facilities referred to in paragraph (a)(ii) above being drawn infull **providedthat** the aggregate of the Base Currency Amounts of all such RelevantUtilisations does not exceed EUR25,000,000; and

 

(ii)                                  Term A Loans (“**Relevant Loans**”) may be drawn prior to theFacilities referred to in paragraph (a)(i) above being drawn in full **providedthat**the aggregate Base Currency Amounts of all such Relevant Loansdoes not exceed EUR 100,000,000.

## ** **

## **4.6**                           Simultaneous Drawdown of certain facilities

No Loan shallbe made under the Term C Euro Facility or the Term C Dollar Facility (the “**FirstRelevant Facilities**”) unless Loans are made simultaneously under theother First Relevant Facility so that the Available Facility in relation toeach First Relevant Facility is reduced rateably.

## ** **

## **4.7**                           Drawing of Term C Facilities

The Term CDollar Facility and the Term C Euro Facility may each only be drawn in no morethan two amounts.

 

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**SECTION 3**

** **

**UTILISATION**

# ** **

# **5.**                                 UTILISATION

## ** **

## **5.1**                           Delivery of a Utilisation Request

A Borrower mayutilise a Facility made available to it by delivery to the Agent of a dulycompleted Utilisation Request no later than the Specified Time.

## ** **

## **5.2**                           Completion of a Utilisation Request

(a)                                      Each Utilisation Request is irrevocable (unless it is a UtilisationRequest solely requesting the issue of a Letter of Credit or Bank Guaranteewhich is withdrawn or revoked by written notice to the Agent and the relevantFronting Bank before that Letter of Credit or Bank Guarantee is issued by thatFronting Bank) and will not be regarded as having been duly completed unless:

 

(i)                        it identifiesthe Facility to be utilised and, if it is a Revolving Facility, whether it isto be utilised by way of a Loan or a Bank Guarantee or a Letter of Credit;

 

(ii)                     the proposedUtilisation Date is a Business Day within the Availability Period;

 

(iii)                  the amount of theUtilisation complies with Clause 5.3 (*Currency and Amount*); and

 

(iv)                 the proposed InterestPeriod or Term (as the case may be) complies with Clause 11 (*InterestPeriods and Terms).*

 

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

 

(c)                                      During the first 90 days after the Closing Date, no more than 10 andthereafter no more than 3 Utilisation Requests may be delivered to the Agent onany one Business Day.

## ** **

## **5.3**                           Currencyand amount

(a)                                      The currency specified in a Utilisation Request must be the BaseCurrency or an Optional Currency, except that in the case of the DollarFacilities it must be dollars and, in the case of the Euro Facilities, it mustbe euros.

 

(b)                                     The amount of the proposed Loan, Letter of Credit or Bank Guaranteemust be an amount whose Base Currency Amount is not more than the AvailableFacility and which is:

 

(i)                        if thecurrency selected is the Base Currency, a minimum of EUR5,000,000 for eachFacility (other than any Dollar Facility and the Term Disposal Facility) (or, in relation to a Letter of Creditor Bank Guarantee, EUR1,000,000 or such lesser amount agreed to by the FrontingBank) or (in relation to any Dollar Facility or the Term Disposal Facility) aminimum of $5,000,000 or in each case, if less, the  Available Facility;

 

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(ii)                     if the currencyselected is dollars, a minimum of $5,000,000 for each Facility  (or, in relation to a Letter of Credit orBank Guarantee, $1,000,000 or such lesser amount agreed to by the FrontingBank) or, if less, the  AvailableFacility;

 

(iii)                  if the currencyselected is sterling, a minimum of £5,000,000 for each Facility (or, inrelation to a Letter of Credit or Bank Guarantee, £1,000,000 or such lesseramount as may be agreed to by the Fronting Bank) or, if less, the AvailableFacility;

 

(iv)                 if the currencyselected is an Optional Currency other than dollars or sterling, the minimumamount specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.3 (*Conditionsrelating to Optional Currencies and the Euro Unit*) (or, in relationto a Letter of Credit or Bank Guarantee, such minimum amount agreed to by theFronting Bank) or, if less, the Available Facility; or

 

(v)                    (in respect of aLetter of Credit or Bank Guarantee in relation to any Revolving Facility) anamount which, when aggregated with the amount of maximum actual and contingentliabilities of the Lenders in respect of all other outstanding Letters ofCredit and Bank Guarantees at such time in relation to that Revolving Facility,does not exceed EUR75,000,000 (in the case of Revolving Facility I) orEUR50,000,000 (in the case of Revolving Facility II).

## ** **

## **5.4**                           Lenders’ and Fronting Banks’ participation

(a)                                      If the conditions set out in this Agreement have been met:

 

(i)                        each Lendershall make its participation in each Loan available through its FacilityOffice; and

 

(ii)                     each FrontingBank shall issue each Letter of Credit and Bank Guarantee through its FacilityOffice.

 

(b)                                     The amount of each Lender’s participation in each Loan, Letter ofCredit and Bank Guarantee will be equal to the proportion borne by itsAvailable Commitment to the Available Facility immediately prior to making suchLoan or issuing such Letter of Credit or Bank Guarantee.

 

(c)                                      The Agent shall notify each Lender of the amount, currency and theBase Currency Amount of each Loan, Letter of Credit and Bank Guarantee at theSpecified Time.

## ** **

## **5.5**                           Completion of Letters of Credit

Therelevant Fronting Bank is authorised to issue any Letter of Credit or Bank Guaranteepursuant to Clause 5 (*Utilisation*) by:

 

(a)                                      completing the issue date and the proposed Expiry Date of thatLetter of Credit or Bank Guarantee; and

 

(b)                                     executing and delivering that Letter of Credit or Bank Guarantee tothe relevant recipient on the Utilisation Date.

 

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## **5.6**                           Renewal of a Letter of Credit or Bank Guarantee

(a)                                      No later than the Specified Time before the Expiry Date of a Letterof Credit or Bank Guarantee the relevant Borrower may, by written notice to theAgent, request that the Term of that Letter of Credit or Bank Guarantee beextended.

 

(b)                                     The Finance Parties shall treat the request in the same way as aUtilisation Request for a Letter of Credit or, as the case may be, Bank Guaranteein the amount and maturity of the Letter of Credit or Bank Guarantee (as to beextended).

 

(c)                                      The terms of each renewed Letter of Credit or Bank Guarantee shallbe the same as those of the relevant Letter of Credit or Bank Guaranteeimmediately prior to its renewal, save that its Term shall commence on the datewhich was the Expiry Date of that Letter of Credit or Bank Guaranteeimmediately prior to its renewal and shall end on the proposed Expiry Datespecified in that request.

 

(d)                                     The relevant Fronting Bank is authorised to amend any Letter ofCredit or Bank Guarantee pursuant to that request if the conditions set out inthis Agreement have been complied with.

## ** **

## **5.7**                           Restrictions on participation in Letters of Credit

If at any timeprior to the issue of a Letter of Credit any Lender is prohibited by law orpursuant to any request from or requirement of any central bank or otherfiscal, monetary or other authority from having any right or obligation underthis Agreement in respect of a Letter of Credit, that Lender shall notify theAgent on or before the Business Day prior to the proposed Utilisation Date and:

 

(a)                                      the maximum actual and contingent liabilities of the relevantFronting Bank under that Letter of Credit shall be reduced by an amount equal toan amount which would have been the amount of that Lender’s L/C Proportion ofthat Letter of Credit if the prohibition had not occurred;

 

(b)                                     the L/C Proportion of that Lender in relation to that Letter ofCredit shall be nil; and

 

(c)                                      that Lender’s Available Commitment in respect of the relevantRevolving Facility shall be reduced by an amount equal to an amount which wouldhave been the amount of that Lender’s L/C Proportion of the Letter of Credit ifthe prohibition had not occurred.

## ** **

## **5.8**                           Restrictions on participation in Bank Guarantees

If at any timeprior to the issue of a Bank Guarantee any Lender is prohibited by law orpursuant to any request from or requirement of any central bank or otherfiscal, monetary or other authority from having any right or obligation underthis Agreement in respect of a Bank Guarantee, that Lender shall notify theAgent on or before the Business Day prior to the proposed Utilisation Date and:

 

(a)                                      the maximum actual and contingent liabilities of the relevantFronting Bank under that Bank Guarantee shall be reduced by an amount equal toan amount which would have been the amount of that Lender’s GuaranteeProportion of that Bank Guarantee if the prohibition had not occurred;

 

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(b)                                     the Guarantee Proportion of that Lender in relation to that BankGuarantee shall be nil; and

 

(c)                                      that Lender’s Available Commitment in respect of the relevantRevolving Facility shall be reduced by an amount equal to an amount which wouldhave been the amount of that Lender’s Guarantee Proportion of the BankGuarantee if the prohibition had not occurred.

# ** **

# **6.**                                 OPTIONALCURRENCIES

## ** **

## **6.1**                           Selectionof currency

(a)                                      A Borrower (or the Obligor’s Agent on behalf of a Borrower) shallselect the currency of a Loan, Letter of Credit or Bank Guarantee:

 

(i)                        (in the caseof an initial Utilisation) in a Utilisation Request **provided that** in respect ofLoans to be made on the Closing Date only euros and dollars and sterling may beselected; and

 

(ii)                     (afterwards in relationto a Term Facility Loan (other than a Dollar Facility Loan) made to it) in aSelection Notice which must be delivered by the same Specified Time as if itwere a Utilisation Request for such a Loan to be made on the date of suchconversion in the currency into which it wishes to convert such Loan.

 

(b)                                     If a Borrower (or the Obligor’s Agent on behalf of a Borrower) failsto issue a Selection Notice by the time specified in paragraph (a)(ii) above inrelation to a Term Facility Loan, that Term Facility Loan will remaindenominated for its next Interest Period in the same currency in which it isthen outstanding.

 

(c)                                      If a Borrower (or the Obligor’s Agent on behalf of a Borrower)issues a Selection Notice requesting a change of currency and the first day ofthe requested Interest Period is not a Business Day for the new currency, theAgent shall promptly notify the Borrower and the Lenders and the Loan willremain in the existing currency (with Interest Periods running from oneBusiness Day until the next Business Day) until the next day which is aBusiness Day for both currencies, on which day the requested Interest Periodwill begin.

 

(d)                                     A Dollar Facility Loan may only be denominated in dollars and a EuroFacility Loan may only be denominated in euros.

## ** **

## **6.2**                           Unavailability of a currency

Ifbefore the Specified Time on any Quotation Day:

 

(a)                                      the Agent has received notice from a Lender that the OptionalCurrency requested is not readily available to it in the amount required; or

 

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

 

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the Agent willgive notice to the relevant  Borrower tothat effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 6.2will be required to participate in the Loan in the Base Currency (in an amountequal to that Lender’s proportion of the Base Currency Amount, or in respect ofa Rollover Loan, an amount equal to that Lender’s proportion of the BaseCurrency Amount of the maturing Revolving Facility Loan that is due to berepaid) and its participation will be treated as a separate Loan denominated inthe Base Currency during that Interest Period.

## ** **

## **6.3**                           Changeof currency

(a)                                      If a Term Facility Loan is to be denominated in different currenciesduring two successive Interest Periods:

 

(i)                        if thecurrency for the second Interest Period is an Optional Currency, the amount ofthe Loan in that Optional Currency will be calculated by the Agent as theamount of that Optional Currency equal to the Base Currency Amount of the Loanat the Agent’s Spot Rate of Exchange at the Specified Time;

 

(ii)                     if the currencyfor the second Interest Period is the Base Currency, the amount of the Loanwill be equal to the Base Currency Amount;

 

(iii)                  (unless the Agentand the Borrower agree otherwise in accordance with paragraph (b) below) theBorrower that has borrowed the Loan shall repay it on the last day of the firstInterest Period in the currency in which it was denominated for that InterestPeriod; and

 

(iv)                 (subject to Clause4.2 (*Furtherconditions precedent)*) the Lenders shall re-advance the Loan in thenew currency in accordance with Clause 6.5 (*Agent’s Calculations*).

 

(b)                                     If the Agent and the Borrower that has borrowed the relevant TermFacility Loan agree, the Agent shall:

 

(i)                        apply theamount paid to it by the Lenders pursuant to paragraph (a)(iv) above (or so muchof that amount as is necessary) in or towards purchase of an amount in thecurrency in which the relevant Term Facility Loan is outstanding for the firstInterest Period; and

 

(ii)                     use the amount itpurchases in or towards satisfaction of the relevant Borrower’s obligationsunder paragraph (a)(iii) above.

 

(c)                                      If the amount purchased by the Agent pursuant to paragraph (b)(i)above is less than the amount required to be repaid by the relevant Borrower,the Agent shall promptly notify that Borrower and that Borrower shall, on thelast day of the first Interest Period, pay an amount to the Agent (in thecurrency of the outstanding relevant Term Facility Loan for the first InterestPeriod) equal to the difference.

 

(d)                                     If any part of the amount paid to the Agent by the Lenders pursuantto paragraph (a)(iv) above is not needed to purchase the amount required to berepaid by the relevant Borrower, the Agent shall promptly notify that Borrowerand pay that

 

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Borrower, on the last day of the first Interest Periodthat part of that amount (in the new currency).

## ** **

## **6.4**                           Same Optional Currency during successive InterestPeriods

(a)                                      If a Term Facility Loan (other than a Dollar Facility Loan or a EuroFacility Loan) is to be denominated in the same Optional Currency during twosuccessive Interest Periods, the Agent shall calculate the amount of such TermFacility Loan in the Optional Currency for the second of those Interest Periods(by calculating the amount of Optional Currency equal to the Base CurrencyAmount of that Term Facility Loan at the Agent’s Spot Rate of Exchange at theSpecified Time) and (subject to paragraph (b) below):

 

(i)                        if the amountcalculated is less than the existing amount of that Term Facility Loan in theOptional Currency during the first Interest Period, promptly notify theBorrower that has borrowed that Term Facility Loan and that Borrower shall pay,on the last day of the first Interest Period, an amount equal to thedifference; or

 

(ii)                     if the amountcalculated is more than the existing amount of that Term Facility Loan in theOptional Currency during the first Interest Period, promptly notify each Lenderand, if no Event of Default is continuing, each Lender shall, on the last dayof the first Interest Period, pay its participation in an amount equal to thedifference.

 

(b)                                     If the calculation made by the Agent pursuant to paragraph (a) aboveshows that the amount of the relevant Term Facility Loan in the OptionalCurrency has increased or decreased by less than 5 per cent. compared to itsBase Currency Amount, no notification shall be made by the Agent and no paymentshall be required under paragraph (a) above.

## ** **

## **6.5**                           Agent’scalculations

(a)                                      All calculations made by the Agent pursuant to this Clause 6 willtake into account any repayment, prepayment, consolidation or division of TermFacility Loans to be made on the last day of the first 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’ andFronting Banks’ participation).*

 

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**SECTION 4**

** **

**REPAYMENT, PREPAYMENT AND CANCELLATION**

# ** **

# **7.**                                 REPAYMENT

## ** **

## **7.1**                           Repayment of Term Disposal Facility Loans

(a)                                      Unless the terms of this Agreement require such to be repaid at anearlier date, each Borrower shall repay the Term Disposal Facility Loans madeto it in full on the Term Disposal Facility Repayment Date.

 

(b)                                     No Borrower may reborrow any part of the Term Disposal Facilitywhich is repaid.

## ** **

## **7.2**                           Repayment of Term A Facility Loans

(a)                                      Unless the terms of this Agreement require such to be repaid at anearlier date, each Borrower shall repay the Term A Facility Loans made to it ininstalments by repaying on each Term A Facility Repayment Date an amount whichreduces the Base Currency Amount of the outstanding Term A Facility Loans by anamount equal to the relevant percentage of the Base Currency Amount of all theTerm A Facility Loans borrowed by that Borrower as at the close of business inLondon on the last day of the relevant Availability Period in relation to theTerm A Facility as set out in the table below:

 
| **Repayment Date** |   | **Repayment  Instalment  (as percentage of all Term A Facility  Loans as at close of business in London on  the last day of the relevant Availability  Period)** |   |
|--------------------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|
| 20 December 2001   |   | 1.5                                                                                                                                                              | %      |
| 20 April 2002      |   | 1.5                                                                                                                                                              | %      |
| 20 October 2002    |   | 2.00                                                                                                                                                             | %      |
| 20 April 2003      |   | 2.5                                                                                                                                                              | %      |
| 20 October 2003    |   | 5.5                                                                                                                                                              | %      |
| 20 April 2004      |   | 6.0                                                                                                                                                              | %      |
| 20 October 2004    |   | 8.5                                                                                                                                                              | %      |
| 20 April 2005      |   | 7.5                                                                                                                                                              | %      |
| 20 October 2005    |   | 10.0                                                                                                                                                             | %      |
| 20 April 2006      |   | 10.0                                                                                                                                                             | %      |
| 20 October 2006    |   | 10.0                                                                                                                                                             | %      |
| 20 April 2007      |   | 10.0                                                                                                                                                             | %      |
| 20 October 2007    |   | 12.5                                                                                                                                                             | %      |
| 20 April 2008      |   | 12.5                                                                                                                                                             | %      |

 

(b)                                     If, in relation to a Term A Facility Repayment Date, the aggregateoutstanding amount of the Term A Facility Loans made to the Borrowers exceedsthe Term A Facility Repayment Instalment to be repaid by the Borrowers, theObligor’s Agent may, if it gives the Agent not less than five Business Days’prior notice, select which of those Term A Facility Loans will be wholly orpartially repaid so that the Term A

 

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Facility Repayment Instalment is repaid on therelevant Term A Facility Repayment Date in full.

 

(c)                                      If the Obligor’s Agent fails to deliver a notice to the Agent inaccordance with paragraph (b) above, the Agent shall select the Term A FacilityLoans to be wholly or partially repaid.

 

(d)                                     Any repayment or prepayment of a Term A Facility Loan denominated inan Optional Currency shall reduce the amount of that Term A Facility Loan bythe amount of that Optional Currency repaid.

 

(e)                                      Save as provided in Clause 10.3 (*Margin Changes*) or paragraph (d) of Clause9.11 (*Voluntaryprepayment of Term Facility Loans*), no Borrower may reborrow anypart of Term A Facility which is repaid.

## ** **

## **7.3**                           Repayment of Term B Dollar Facility Loans

(a)                                      Unless the terms of this Agreement require such to be repaid at anearlier date, each Borrower shall repay the Term B Dollar Facility Loans madeto it in instalments by repaying on each Term B Facility Repayment Date anamount which reduces the outstanding Term B Dollar Facility Loans by an amountequal to 50% of all the Term B Dollar Facility Loans borrowed by that Borroweras at close of business on the last Business Day of the relevant AvailabilityPeriod.

 

(b)                                     If, in relation to a Term B Facility Repayment Date, the aggregateoutstanding amount of the Term B Dollar Facility Loans made to the Borrowersexceeds the Term B Dollar Facility Repayment Instalment to be repaid by the Borrowers,the Obligor’s Agent may, if it gives the Agent not less than five BusinessDays’ prior notice, select which of those Term B Dollar Facility Loans will bewholly or partially repaid so that the Term B Dollar Facility RepaymentInstalment is repaid on the relevant Term B Facility Repayment Date in full.

 

(c)                                      If the Obligor’s Agent fails to deliver a notice to the Agent inaccordance with paragraph (b) above, the Agent shall select the Term B DollarFacility Loans to be wholly or partially repaid.

 

(d)                                     No Borrower may reborrow any part of the Term B Dollar Facilitywhich is repaid.

## ** **

## **7.4**                           Repayment of Term B Euro Facility Loans

(a)                                      Unless the terms of this Agreement require such to be repaid at anearlier date, each Borrower shall repay the Term B Euro Facility Loans made toit in instalments by repaying on each Term B Facility Repayment Date an amountwhich reduces the outstanding Term B Euro Facility Loans by an amount equal to50% of all the Term B Euro Facility Loans borrowed by that Borrower as at closeof business on the last Business Day of the relevant Availability Period.

 

(b)                                     If, in relation to a Term B Facility Repayment Date, the aggregateoutstanding amount of the Term B Euro Facility Loans made to the Borrowersexceeds the Term B Euro Facility Repayment Instalment to be repaid by theBorrowers, the Obligor’s Agent may, if it gives the Agent not less than fiveBusiness Days’ prior notice, select which of those Term B Euro Facility Loanswill be wholly or partially repaid so that the 

 

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Term B Euro Facility Repayment Instalment is repaid onthe relevant Term B Facility Repayment Date in full.

 

(c)                                      If the Obligor’s Agent fails to deliver a notice to the Agent inaccordance with paragraph (b) above, the Agent shall select the Term B EuroFacility Loans to be wholly or partially repaid.

 

(d)                                     Save as provided in Clause 10.3 (*Margin changes*), no Borrower may reborrowany part of the Term B Euro Facility which is repaid.

## ** **

## **7.5**                           Repayment of Term C Euro Facility Loans

(a)                                      Unless the terms of this Agreement require such to be repaid at anearlier date, each Borrower shall repay the Term C Euro Facility Loans made toit in instalments by repaying on each Term C Facility Repayment Date an amountwhich reduces the outstanding Term C Euro Facility Loans by an amount equal to50% of all the Term C Euro Facility Loans borrowed by the Borrowers as at closeof business on the last Business Day of the relevant Availability Period.

 

(b)                                     If, in relation to a Term C Facility Repayment Date, the aggregateoutstanding amount of the Term C Euro Facility Loans made to the Borrowersexceeds the Term C Euro Facility Repayment Instalment to be repaid by theBorrowers, the Obligor’s Agent may, if it gives the Agent not less than fiveBusiness Days’ prior notice, select which of those Term C Euro Facility Loanswill be wholly or partially repaid so that the Term C Euro Facility RepaymentInstalment is repaid on the relevant Term C Facility Repayment Date in full.

 

(c)                                      If the Obligor’s Agent fails to deliver a notice to the Agent inaccordance with paragraph (b) above, the Agent shall select the Term C EuroFacility Loans to be wholly or partially repaid.

 

(d)                                     No Borrower may reborrow any part of the Term C Euro Facility whichis repaid.

## ** **

## **7.6**                           Repayment of Term C Dollar Facility Loans

(a)                                      Unless the terms of this Agreement require such to be repaid at anearlier date, each US Borrower shall repay the Term C Dollar Facility Loansmade to it in instalments by repaying on each Term C Facility Repayment Date anamount which reduces the outstanding Term C Dollar Facility Loans by an amountequal to 50% of all the Term C Dollar Facility Loans borrowed by that USBorrower as at close of business in London on the last day of the relevant AvailabilityPeriod.

 

(b)                                     If, in relation to a Term C Facility Repayment Date, the aggregateoutstanding amount of the Term C Dollar Facility Loans made to the US Borrowersexceeds the Term C Dollar Facility Repayment Instalment to be repaid by the USBorrowers, the Obligor’s Agent may, if it gives the Agent not less than fiveBusiness Days’ prior notice, select which of those Term C Dollar Facility Loanswill be wholly or partially repaid so that the Term C Facility RepaymentInstalment is repaid on the relevant Term C Facility Repayment Date in full.

 

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(c)                                      If the Obligor’s Agent fails to deliver a notice to the Agent inaccordance with paragraph (b) above, the Agent shall select the Term C DollarFacility Loans to be wholly or partially repaid.

 

(d)                                     No Borrower may reborrow any part of the Term C Dollar Facilitywhich is repaid.

## ** **

## **7.7**                           Repayment of Revolving Facility Loans

Each Borrowerwhich has drawn a Revolving Facility Loan shall repay that Loan on the last dayof its Interest Period.

## ** **

## **7.8**                           Changeof Borrower

(a)                                      A Term A Facility Loan, a Term B Euro Facility Loan or on Term CEuro Facility Loan may be prepaid (in whole or in part) by a Borrower (which iseither MGG or Messer Finance S.A.) and reborrowed by another Borrower of therelevant Facility (which is either MGG or Messer Finance S.A.) on the last dayof an Interest Period provided that:

 

(i)                        a dulycompleted Change of Borrower Notice has been delivered to the Agent no laterthan 9.30 a.m. four Business Days before the proposed date of the change ofBorrower;

 

(ii)                     the Loanreborrowed is under the same Term Facility, is the same amount as the amountprepaid and is in the same currency as the Loan (in whole or in part) prepaid;

 

(iii)                  no Event of Defaultis continuing or would result from the reborrowing;

 

(iv)                 the RepeatingRepresentations to be made or deemed to be made by the Obligor’s Agent and eachObligor which is then a Party are true in all material respects; and

 

(v)                    the prepayment andreborrowing, take place on the same day by way of book entries, and not by wayof a physical movement of cash.

 

(b)                                     Notwithstanding any other provision of this Agreement, a change ofBorrower in accordance with paragraph (a) above may occur on the last day of anInterest Period after the Availability Period for the relevant Term Facilityhas ended.

# ** **

# **8.**                                 BORROWER’S LIABILITIES IN RELATION TO LETTERS OF CREDIT AND BANK GUARANTEES

## ** **

## **8.1**                           Demands under Letters of Credit and Bank Guarantees

If a demand ismade under a Letter of Credit or a Bank Guarantee or a Fronting Bank incurs inconnection with a Letter of Credit or a Bank Guarantee any other liability,cost, claim, loss or expense which is to be reimbursed pursuant to thisAgreement, the relevant Fronting Bank shall promptly notify the Agent of theamount of such demand or such liability, cost, claim, loss or expense and theLetter of Credit or, as the case may be, Bank Guarantee to which it relates andthe Agent shall promptly make demand upon the relevant Borrower in accordancewith this Agreement and notify the Obligor’s Agent and the Lenders.

## ** **

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## **8.2**                           Borrowers’ indemnity to Fronting Banks

Each Borrowershall irrevocably and unconditionally as a primary obligation indemnify (withinthree Business Days of demand of the Agent) any Fronting Bank which has issueda Letter of Credit or a Bank Guarantee at the request of such Borrower against:

 

(a)                                      any sum paid by that Fronting Bank in accordance with the provisionsof such Letter of Credit or Bank Guarantee or due and payable by that FrontingBank under such Letter of Credit or, as the case may be, Bank Guarantee; and

 

(b)                                     all liabilities, costs (including, without limitation, any costsincurred in funding any amount which falls due from that Fronting Bank undersuch Letter of Credit or Bank Guarantee or in connection with any such Letterof Credit or Bank Guarantee), claims, losses and expenses which that FrontingBank may at any time incur or sustain in connection with or arising out of anysuch Letter of Credit or Bank Guarantee **provided that** any payment under such Letterof Credit or Bank Guarantee shall have been made in compliance with the termsthereof.

## ** **

## **8.3**                           Borrowers’ indemnity to Lenders

Each Borrowershall irrevocably and unconditionally as a primary obligation indemnify (ondemand of the Agent) each Lender against, in respect of each Letter of Creditand Bank Guarantee issued at such Borrower’s request:

 

(a)                                      any sum paid by that Lender in accordance with the provisions hereofor due and payable by that Lender (whether under Clause 28.1 (*Lenders*’*Indemnity*)or otherwise) in connection with such Letter of Credit or Bank Guarantee; and

 

(b)                                     all liabilities, costs (including, without limitation, any costsincurred in funding any amount which falls due from that Lender in connectionwith such Letter of Credit or Bank Guarantee), claims, losses and expenseswhich that Lender may at any time incur or sustain in connection with any suchLetter of Credit or Bank Guarantee **provided that** any payment under such Letterof Credit or Bank Guarantee shall have been made in compliance with the termsthereof.

## ** **

## **8.4**                           Preservationof rights

Neither theobligations of the Borrowers set out in this Clause 8 nor the rights, powersand remedies conferred on any Fronting Bank or Lender by this Agreement or bylaw shall be discharged, impaired or otherwise affected by:

 

(a)                                      the winding-up, dissolution, administration or re-organisationof the relevant Fronting Bank, any Lender or any other person or any change inits status, function, control or ownership;

 

(b)                                     any of the obligations of the relevant Fronting Bank, any Lender orany other person under this Agreement, any Letter of Credit, any Bank Guaranteeor any other security taken in respect of its obligations under this Agreementor otherwise in connection with a Letter of Credit or Bank Guarantee being orbecoming illegal, invalid, unenforceable or ineffective in any respect;

 

(c)                                      time or other indulgence being granted or agreed to be granted tothe relevant Fronting Bank, any Lender or any other person in respect of itsobligations under this

 

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Agreement or under or in connection with a Letter ofCredit or Bank Guarantee or under any other security;

 

(d)                                     any amendment to, or any variation, waiver or release of, anyobligation of that Fronting Bank, any Lender or any other person under a Letterof Credit, Bank Guarantee or this Agreement;

 

(e)                                      any other act, event or omission which, but for this Clause 8,might operate to discharge, impair or otherwise affect any of the obligationsof the Borrowers set out in this Clause 8 or any of the rights, powers orremedies conferred upon that Fronting Bank or any Lender by this Agreement orby law.

 

The obligationsof each Borrower set out in this Clause 8 shall be in addition to andindependent of every other security which any Fronting Bank or any Lender mayat any time hold in respect of the Borrowers’ obligations under this Agreement.

## ** **

## **8.5**                           Settlementconditional

Any settlementor discharge between a Borrower and a Fronting Bank or a Lender shall beconditional upon no security or payment to that Fronting Bank or Lender by thatBorrower, or any other person on behalf of that Borrower, being avoided orreduced by virtue of any laws relating to bankruptcy, insolvency, liquidationor similar laws of general application and, if any such security or payment isso avoided or reduced, that Fronting Bank or Lender shall be entitled torecover the value or amount of such security or payment from such Borrowersubsequently as if such settlement or discharge had not occurred.

## ** **

## **8.6**                           Right to make payments under Letters of Credit andBank Guarantees

Each FrontingBank shall be entitled to make any payment in accordance with the terms of therelevant Letter of Credit or, as the case may be, Bank Guarantee without anyreference to or further authority from the Obligor’s Agent, the Borrowers orany other investigation or enquiry. Each Borrower irrevocably authorises eachFronting Bank to comply with any demand under a Letter of Credit or BankGuarantee which is valid on its face.

# ** **

# **9.**                                 PREPAYMENTAND CANCELLATION

## ** **

## **9.1**                           Illegality

If, at anytime, it is unlawful in any jurisdiction for a Lender or Fronting Bank toperform any of its obligations as contemplated by this Agreement or to fund,issue or participate in any Loan, Letter of Credit or Bank Guarantee:

 

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

 

(b)                                     upon the Agent notifying the Obligor’s Agent, the Commitment of thatLender will be immediately cancelled;

 

(c)                                      each Borrower shall, on the last day of the Interest Period for eachLoan or Term for each Letter of Credit or Bank Guarantee occurring after theAgent has notified the Obligor’s Agent or, if earlier, the date specified bythe Lender or Fronting Bank in the notice delivered to the Agent (being noearlier than the last day of any applicable grace period permitted by law):

 

(i)                        repay thatLender’s participation in the Loans made to it; and

 

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(ii)                     ensure that theliabilities of that Lender or Fronting Bank under or in respect of each Letterof Credit and Bank Guarantee issued at the request of such Borrower are reducedto zero or otherwise secured by providing Cash Collateral in an amount equal tosuch Lender’s L/C Proportion of those Letters of Credit, Guarantee Proportionof those Bank Guarantees or, as the case may be, that Fronting Bank’s maximumactual and contingent liabilities under those Letter of Credit and BankGuarantees in the currency or currencies of those Letters of Credit and BankGuarantees.

## ** **

## **9.2**                           Changeof control

If after theClosing Date there is a Change of Control:

 

(a)                                      the Obligor’s Agent shall promptly notify the Agent upon becomingaware of that event; and

 

(b)                                     the Obligor’s Agent shall procure that the Outstandings areimmediately and permanently prepaid in full and the Facilities immediatelycancelled,

** **

**provided that**:

 

(1)                     if the Company ceases to own 100% of the issued share capital ofNewco 2 as a result of, and on the terms of, the transactions expresslycontemplated by the Business Combination Agreement relating to the transfer of66 2/3% of the shares in Newco 2 to Hoechst Newco 3, for a period nolonger than 90 days (the “**Postponed Control Period**”) then during thePostponed Control Period only the Company shall not be regarded for thepurposes of the definition of Change of Control in Clause 1.1 (*Definitions*)to have ceased to own (directly or indirectly) 100% of the issued share capitalin Newco 2 or MGG or (if it is during the Debtco Structure Period) Debtco; and

 

(2)                     no Change of Control under paragraph (e) of the definition of Changeof Control in Clause 1.1 (*Definitions*) shall arise as a result ofNewco 2 not owning 100% of the issued share capital of MGG if at such timeNewco 2 owns 662/3% of the issued share capital of MGGand MIG has contributed the Family MGG Shares to Newco 2 in accordance with theContribution Agreement set out in Annex 1.1(b) to the Shareholders’ Agreementbut such contribution is not yet effective pending the registration of therelevant increase of share capital of Newco 2 by the relevant German court.

## ** **

## **9.3**                           Flotationor Sale

The Obligor’sAgent shall procure that the Outstandings are immediately and permanentlyprepaid in full upon the occurrence of a Sale or a Flotation and the Facilitiesimmediately cancelled.

## ** **

## **9.4**                           ExcessCash Flow

The Obligor’sAgent shall ensure that after delivery of the most recent audited financialstatements of the Newco 2 Group pursuant to paragraph (a) of Clause 21.1 (*FinancialStatements*), commencing with the financial statements delivered inrespect of the calendar year ending 31 December 2001, 75 per cent.(or, if theLeverage Ratio for the calendar year to which such financial statements relateis less than 4:1, 50 per  cent.) ofExcess Cash Flow for 

 

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the calendaryear to which such financial statements relate (less the aggregate amount bywhich the Term Facilities have been prepaid pursuant to Clause 9.11 (*VoluntaryPrepayment of Term Facility Loans*)**during such calendar year(other than the aggregate amount by which the Term Facilities have been prepaidin that calendar year pursuant to Clause 9.11(e) (*Voluntary prepayment of Term Facility Loans*)) and less theaggregate amount by which the Term Facilities have been prepaid in accordancewith Clause 9.11(e)(i) (*Voluntary prepaymentof Term Facility Loans*) after the end of such calendar year butbefore the delivery of the financial statements in respect of such calendaryear) is applied in repayment of the outstanding Loans in accordance withClause 9.8 (*Applicationof Prepayments*), such repayment in relation to each Loan to berepaid to be made on the last day of the Interest Period current at the date ofdelivery of such financial statements of each such Loan due to be repaid orsuch earlier date as the Obligor’s Agent may elect.  Without in any way affecting the obligations of the Obligor’sAgent under this Clause, the Agent agrees that it shall notify the Obligor’sAgent as soon as reasonably practicable after receipt of the relevant financialstatements and their accompanying Compliance Certificate and Auditors Report ofthe details of the application of the repayment required under this Clause  and the dates on which such application isto be made.

## ** **

## **9.5**                           AssetDisposals

(a)                                      Subject to Clause 9.9 (*Prepayment Escrow Account*), the Obligor’sAgent shall ensure that an amount equal to 100% of the amount of the NetDisposal Proceeds of any disposals of any asset by any member of the Group madein accordance with the Disposal Plan or falling within paragraph (i) or (k)(iv)of the definition of Permitted Disposals is applied within 5 Business Days ofsuch member of the Group receiving such Net Disposal Proceeds in repayment ofthe outstanding Loans in accordance with Clause 9.8 (*Application of Prepayments*),save that if such Net Disposal Proceeds when added to the aggregate amount ofthe Term Disposal Facility which has been repaid at that time and the RelevantDebt Relief Amount at such time exceed EUR255,000,000 (or its equivalent) (theamount of such excess being the “**Excess Amount**”) then in respect of suchExcess Amount only the Obligor’s Agent is only obliged to procure that anamount equal to 75% of such Excess Amount is so applied unless if as a resultthere would still be Term Disposal Facility Loans outstanding, in which case itis obliged to procure that a higher percentage of such Excess Amount is soapplied so as to ensure that the Term Disposal Facility is repaid in full.

 

(b)                                     Subject to Clause 9.9 (*Prepayment Escrow Account*), the Obligor’sAgent shall ensure that an amount equal to 100% of the amount of the NetDisposal Proceeds of any disposal of any asset by any member of the Group,where such a disposal falls within paragraph (n) of the definition of PermittedDisposals or is a disposal pursuant to section 3.3 (*Exemption of Certain Transactions*)of the BCA which does not fall to be applied under paragraph (a) of this Clause9.5, is applied promptly upon such member of the Group receiving such amount inrepayment of the outstanding Loans in accordance with Clause 9.8 (*Applicationof Prepayments*) save that if such Net Disposal Proceeds exceed theaggregate amount of the Term Disposal Facility Loans outstanding at that time(the amount of such excess being the “**Excess Amount**”) then in respect of suchExcess Amount only the Obligor’s Agent is only obliged to procure that anamount equal to 75% of such Excess Amount is so applied.  The Obligor’s Agent shall not be obliged toapply such amounts in such repayment if the relevant

 

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member of the Group can show to the satisfaction ofthe Agent (acting reasonably) that the Net Disposal Proceeds, when aggregatedwith the Net Disposal Proceeds received by members of the Group in respect ofdisposals falling within paragraph (n) of the definition of Permitted Disposalsmade in the same calendar year, does not exceed EUR10,000,000 or itsequivalent.

 

(c)                                      In the case of sub-clause (ii) of paragraph (e) of the definition ofPermitted Disposals in Clause 1.1 (*Definitions*), the Obligor’s Agent shallensure that an amount equal to the Net Disposal Proceeds referred to therein is,within 5 Business Days of the relevant member of the Group receiving such NetDisposal Proceeds, deposited in a Prepayment Escrow Account and the relevantmember of the Group or the Obligor’s Agent shall be entitled, during the 180or, as appropriate, 360 day period, to withdraw (or, as the case may be,require the Obligor in whose name such Prepayment Escrow Account is held towithdraw) sums from such account only to the extent that it certifies to theAgent (providing any supporting evidence reasonably required by the Agent) thatsuch sums will be reinvested or applied in accordance with the provisions ofsub-clause (A) or (B)  of paragraph(e)(ii) of the definition of Permitted Disposals in Clause 1.1 (*Definitions*).

 

(d)                                     Any amounts not reinvested as specified in sub-clause (A) or (B) ofparagraph (e)(ii) of the definition of Permitted Disposals in Clause 1.1 (*Definitions*)during the 180 or, as appropriate, 360 day period specified therein shall(subject to the provisions of Clause 9.9 (*Prepayment Escrow Accounts*)) thereafter bepromptly applied in repayment of the outstanding Loans in accordance withClause 9.8 (*Applicationof Prepayments)*.

 

(e)                                      If at the time a prepayment (the “**RelevantPrepayment**”) is due to be made under this Clause 9.5 as a result ofany disposal there is an amount which has been prepaid pursuant to Clause9.11(e)(ii) (*Voluntary prepayment of TermFacility Loans*) which has not been used to satisfy obligations tomake a prepayment under this Clause 9.5 already (the “**Relevant Amount**”) then such Relevant Amount(or, if the Relevant Amount is greater than the amount of the RelevantPrepayment, a part of the Relevant Amount equal to the amount of such RelevantPrepayment) shall be treated as having satisfied (to the extent of the RelevantAmount or such part thereof) the obligations of the Obligor’s Agent to procurethe making of the Relevant Prepayment in regard to that disposal.  For the avoidance of any doubt, a RelevantAmount (or part thereof) shall only be so treated once (so that there is nodouble counting of a Relevant Amount or any part thereof).

## ** **

## **9.6**                           InsuranceProceeds

(a)                                      Subject to Clause 9.9 (*Prepayment Escrow Accounts*), the Obligor’sAgent shall ensure that an amount equal to the Insurance Proceeds received byany member of the Group above an aggregate minimum threshold of InsuranceProceeds of EUR5,000,000 (the “**Minimum Insurance Proceeds Threshold**”) is,within 5 Business Days of such member receiving such Insurance Proceeds,applied in repayment of the outstanding Loans in accordance with Clause 9.8 (*Applicationof Prepayments)* unless the Obligor’s Agent notifies the Agent within30 days of receipt by the relevant member of the Group of such proceeds thateither:

 

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(i)                        the InsuranceProceeds received above the Minimum Insurance Proceeds Threshold will beapplied towards the replacement, reinstatement and/or repair of the assets inrespect of which the relevant insurance claim was made (or to refinance orreimburse any expenditure incurred in the replacement, reinstatement and/orrepair of such assets) within a period of 180 days from the date of receipt ofsuch Insurance Proceeds by the relevant member of the Group; or

 

(ii)                     bindingcommitments will be made by the relevant member of the Group within such 180day period to so apply the Insurance Proceeds received above the MinimumInsurance Proceeds Threshold and such proceeds are so applied pursuant to suchcommitments within a period of 360 days or, if the proceeds to be so appliedexceed EUR20,000,000 (or its equivalent in other currencies), 720 days from thedate of receipt of such proceeds by such member of the Group.

 

(b)                                     If the Insurance Proceeds are to be applied in such replacement,reinstatement, repair or to refinance such expenditure as contemplated inparagraph (a) above, then the Obligor’s Agent shall ensure that an amount equalto such Insurance Proceeds is, promptly upon such member receiving suchInsurance Proceeds, deposited in a Prepayment Escrow Account.  The relevant member of the Group whoreceived the Insurance Proceeds (or the Obligor’s Agent) shall be entitled,during the period of 180 days or, as appropriate, 360 days or, as appropriate,720 days, from such receipt of the Insurance Proceeds, to withdraw sums fromsuch Prepayment Escrow Account only to the extent that it certifies to theAgent (providing any supporting evidence reasonably requested by the Agent)that such sums will be applied towards the replacement, reinstatement and/orrepair of the assets in respect of which the relevant insurance claim was made(or to refinance or reimburse any expenditure incurred in the replacement,reinstatement and/or repair of such assets). Any sums not so withdrawn during such 180 or, as appropriate, 360 or, asappropriate, 720 day, period shall (subject to the provisions of Clause 9.9 (*PrepaymentEscrow Accounts*)) thereafter be promptly paid to the Agent andapplied in repayment of the outstanding Loans in accordance with Clause 9.8 (*Applicationof Prepayments)*.

## ** **

## **9.7**                           Acquisition Recovery Proceeds

(a)                                      Subject to Clause 9.9 (*Prepayment Escrow Account*), the Obligor’sAgent shall ensure that an amount equal to the amount of Acquisition RecoveryProceeds received by any member of the Group (or any shareholder of the Company)above an aggregate minimum threshold of Acquisition Recovery Proceeds ofEUR5,000,000 (the “**Minimum Acquisition Recovery Threshold**”),are within 5 Business Days of the relevant member of the Group (or such otherperson) receiving such Acquisition Recovery Proceeds applied in repayment ofthe outstanding Loans in accordance with Clause 9.8 (*Application of Prepayments)*unlessthe Obligor’s Agent notifies the Agent within 30 days of receipt by therelevant member of the Group (or such other relevant person) of such proceedsthat either:

 

(i)                        theAcquisition Recovery Proceeds received above the Minimum Acquisition RecoveryThreshold will be applied towards an Acquisition Remedy within a

 

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periodof 180 days from the date of receipt of such Acquisition Recovery Proceeds bythe relevant member of the Group; or

 

(ii)                     bindingcommitments will be made by the relevant member of the Group within such 180day period to apply the Acquisition Recovery Proceeds received above theMinimum Acquisition Recovery Threshold towards an Acquisition Remedy set out inparagraph (c) of the definition of Acquisition Remedy in Clause 1.1 (*Definitions*)and such proceeds are so applied within 360 days from the date of receipt ofsuch proceeds by such member of the Group or relevant person.

 

(b)                                     If the Acquisition Recovery Proceeds are to be applied towards anAcquisition Remedy, the Obligor’s Agent shall ensure that an amount equal toany Acquisition Recovery Proceeds to be applied in accordance with paragraph(a) above is, promptly upon the relevant member of the Group (or any otherperson entitled to receive the same) receiving such Acquisition RecoveryProceeds, deposited in a Prepayment Escrow Account.  The relevant member of the Group who received the AcquisitionRecovery Proceeds (or the Obligor’s Agent) shall be entitled, during the periodof 180 days or, as appropriate, 360 days from such receipt of such AcquisitionRecovery Proceeds, to withdraw sums from the Prepayment Escrow Account only tothe extent that it certifies to the Agent (providing any supporting evidencereasonably requested by the Agent) that such sums will be applied towards arelevant Acquisition Remedy.  Any sumsnot so withdrawn during such 180 or, as appropriate, 360 day period shall(subject to the provisions of Clause 9.9 (*Prepayment of Escrow**Account*)) thereafter bepromptly paid to the Agent and applied in repayment of the outstanding Loans inaccordance with Clause 9.8 (*Application of Prepayments)*.

## ** **

## **9.8**                           Application of Prepayments

(a)                                      Any amounts paid to the Agent in accordance with Clause 9.4 (*Excess CashFlow*) to 9.7 (*Acquisition Recovery**Proceeds*) or Clause 9.11(e)(*Voluntary prepayment of Term Facility Loans*)(inclusive) (other than paragraph (a) of Clause 9.5 (*Asset Disposals*)) to beapplied in prepayment of the Loans shall be applied as follows:

 

(i)                        first, inrepayment of the outstanding Term Facility Loans in the Prepayment Order setout in paragraphs (a)(i) and (a)(ii) of the definition of Prepayment Orderunless the Obligor’s Agent has, not less than three Business Days prior to thedate on which such  amounts are to beapplied under this Clause 9.8(a), notified the Agent that such amounts shall beapplied in accordance with paragraph (b) of the definition of “PrepaymentOrder” in Clause 1.1 (*Definitions*)(and a corresponding cancellation of the Term Facilities), such repayment andcancellation being on a pro rata basis between the Term Facilities (subject toparagraph (d) below); and

 

(ii)                     secondly, if anyexcess remains thereafter, in payment of such excess to the relevant member ofthe Group and in cancellation of the remaining Available Facility in respect ofeach Revolving Facility by an equal amount (reducing the Commitments of theLenders rateably under each such Revolving Facility).

 

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(b)                                     Any amounts paid to the Agent in accordance with paragraph (a) ofClause 9.5 (*Asset Disposals*) orClause 9.11(e) (*Voluntary prepayment of TermFacility Loans*) to be applied in prepayment of the Loans shall beapplied as follows:

 

(i)                        first, inrepayment of the outstanding Term Facility Loans in the Prepayment Order setout in paragraphs (a)(i) and (a)(ii) of the definition of Prepayment Orderunless the Obligor’s Agent has, not less than three Business Days prior to thedate on which such amounts are to be applied under this Clause 9.8(b), notifiedthe Agent that such amounts shall be applied in accordance with paragraph (b)of the definition of “Prepayment Order” in Clause 1.1 (*Definitions*) (and a correspondingcancellation of the Term Facilities); and

 

(ii)                     secondly, if anyexcess remains thereafter, in payment of such excess to the relevant member ofthe Group and in cancellation of the remaining Available Facility in respect ofeach Revolving Facility by an equal amount (reducing the Commitments of theLenders rateably under each such Revolving Facility).

 

(c)                                      Any amount of the Loans repaid in accordance with this Clause 9.8may not be reborrowed and any cancellation of the Available Facility inaccordance with this Clause 9.8 shall reduce the Commitment of each Lenderrateably and the amount so cancelled may not be reborrowed.

 

(d)                                     Any Lender which has provided a Term B Euro Facility Loan and/or aTerm B Dollar Facility Loan and/or a Term C Euro Facility Loan and/or a Term CDollar Facility Loan, shall have the right to elect that any such Loan shallnot be mandatorily repaid in accordance with this Clause 9.8 or voluntarilyprepaid in accordance with Clause 9.11(e) (*Voluntaryprepayment of Term Facility Loans*) **provided that** the amountwhich would have been applied towards such mandatory prepayment or voluntaryprepayment can be applied towards the mandatory prepayment of Term DisposalFacility Loans and/or Term A Facility Loans which remain outstanding.  Any Lenders wishing to make such an electionshall notify the Agent accordingly.  Thesums which would have been applied towards the repayment of such Loans shall beapplied towards the repayment of the remaining Term Facility Loans and (ifappropriate) in payment to the relevant member of the Group (and correspondingcancellation of the remaining Available Facility in respect of each RevolvingFacility), in each case in accordance with paragraphs (a) or (b) above (asapplicable).

## ** **

## **9.9**                           Prepayment Escrow Accounts

(a)                                      If Clause 9.4 (*Excess Cash Flow*) to Clause 9.7 (*AcquisitionRecovery Proceeds*) inclusive would require the Obligor’s Agent toprocure the prepayment of any Loan otherwise than at the end of an InterestPeriod relating to that Loan, the Obligor’s Agent can elect (by written noticeto the Agent to be received not later than 10 a.m. three Business Days prior tothe date on which the prepayment obligation would, but for this Clause 9.9,arise) to credit the amount to be prepaid to an identified Prepayment EscrowAccount on the date on which the prepayment obligation would, but for thisClause 9.9, arise and to prepay the relevant Loan at the first occurring end ofan Interest Period relative to the Loan to be repaid.  Following any such election and provided the required payment ismade to such Prepayment Escrow Account the

 

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obligation to prepay the relevant Loan will not ariseuntil the first occurring end of an Interest Period relative to such Loan to berepaid.

 

(b)                                     The Obligor’s Agent and each Obligor hereby irrevocably authorisesthe Agent to withdraw monies from any Prepayment Escrow Account and apply suchmonies against prepayments which are due to be made hereunder.

 

(c)                                      The Parties agree that interest which has accrued on any PrepaymentEscrow Account may be withdrawn by the Obligor in whose name that PrepaymentEscrow Account is held in accordance with the mandate relating to such account **provided that**no such withdrawal may be made while a Default is continuing.

 

(d)                                     If an amount is paid into a Prepayment Escrow Account pursuant tothe provisions of paragraph (e) (ii) of the definition of Permitted Disposalsin Clause 1.1 (*Definitions*) then the Obligor’s Agent shall be entitled,during the 180 or, as appropriate, 360 day period referred to in that paragraph(e) (ii) in relation to such amount to withdraw (or, as the case may be,require the Obligor in whose name such Prepayment Escrow Account is held towithdraw) sums from such account only to the extent that it certifies to theAgent (providing any supporting evidence reasonably required by the Agent) thatsuch sums will be used to acquire Comparable Assets as defined in paragraph (e)of the definition of Permitted Disposals. Any amounts not so applied asspecified above during such 180 or, as appropriate, 360 day period shall bepromptly applied in repayment of the outstanding Loans in accordance with thisClause 9.9.

## ** **

## **9.10**                     Voluntarycancellation

(a)                                      The Obligor’s Agent may, if it gives the Agent not less than tenBusiness Days’ (or such shorter period as the Majority Lenders may agree) priornotice, cancel the whole or any part (being a minimum amount of EUR5,000,000)of an Available Facility.  The Obligor’sAgent may only cancel any amount of the Available Facility relating toRevolving Facility II if either:

 

(i)                        the TotalNon-Indemnified Unconsolidated Debt has been or will be permanently reduced byat least the same amount prior to any such cancellation and for the avoidanceof any doubt the amount of any permanent reduction of Total Non-IndemnifiedUnconsolidated Debt may only count once for the purpose of this Clause 9.10; or

 

(ii)                     the Obligor’sAgent certifies to the Agent (providing any supporting evidence thereofreasonably requested by the Agent) that after the proposed cancellation theAvailable Facility relating to Revolving Facility II will be equal to orgreater than Total Non-Indemnified Unconsolidated Debt.

 

Anycancellation under this Clause 9.10 shall reduce the Commitments of the Lendersrateably under that Facility.

 

(b)                                     The Obligor’s Agent may, by giving the Agent not less than tenBusiness Days’ prior notice (or such shorter period as the Majority Lenders mayagree) of its intention to do so, procure that the relevant Fronting Bank’sliability under a Letter of Credit or a

 

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Bank Guarantee is reduced to zero (whereupon theObligor’s Agent and the relevant Borrower shall do so).

## ** **

## **9.11**                     Voluntary prepayment of Term Facility Loans

(a)                                      A Borrower to which a Term Facility Loan has been made may, if itgives the Agent not less than five Business Days’ (or such shorter period asthe Majority Lenders may agree) prior notice, prepay the whole or any part ofany Term Facility Loan (but, if in part, being an amount that reduces the BaseCurrency Amount of the relevant Term Facility Loan by a minimum amount ofEUR5,000,000 (in the case of a Term Facility Loan which is not a DollarFacility Loan) or by a minimum amount of $5,000,000 (in the case of a DollarFacility Loan) or in any other amount to comply with paragraph (d) of thisClause 9.11).

 

(b)                                     A Term Facility Loan may only be prepaid after the last day of therelevant Availability Period (or, if earlier, the day on which the applicableAvailable Facility is zero) unless paragraph (d) of this Clause 9.11 applies.

 

(c)                                      Subject to paragraph (d) of this Clause 9.11, any prepayment underthis Clause 9.11 shall:

 

(i)                        in respect ofTerm Disposal Facility Loans, satisfy the obligations under Clause 7.1 (*Repayment ofTerm Disposal Facility Loans*) on a pro rata basis; and

 

(ii)                     in respect ofTerm A Facility Loans, Term B Euro Facility Loans, Term B Dollar FacilityLoans, Term C Euro Facility Loans and Term C Dollar Facility Loans satisfy theobligations under Clauses 7.2 (*Repayment of Term A Facility Loans*),Clause 7.3 (*Repaymentof Term B Dollar Facility Loans*), Clause 7.4 (*Repayment of Term B Euro Facility Loans*),Clause 7.5 (*Repaymentof Term C Euro Facility Loans*) or, as the case may be, Clause 7.6 (*Repayment ofTerm C Dollar Facility Loans*) in the Prepayment Order set out inparagraphs (a)(i) and (a)(ii) of the definition of Prepayment Order unless theObligor’s Agent has given the Agent not less than five Business Days’ noticethat any amount to be voluntarily prepaid under this Clause 9.11(c)(ii) shallbe applied in accordance with paragraph (b) of the definition of “PrepaymentOrder” in Clause 1.1 (*Definitions*).

 

(d)                                     Any prepayment of the Facilities from EUR 115,000,000 of theAdditional Amount (as defined in the definition of High Yield Notes in Clause1.1 (*Definitions*))shall be made under this Clause 9.11 and shall be applied in prepayment of theOutstandings as follows:

 

(i)                           EUR 60,000,000 shall be used in prepayment of the Term A Facilityand immediately after such prepayment there shall be deemed to be an immediatere-borrowing of half of such amount so prepaid resulting in a Term A FacilityLoan (the “**Deemed Loan**”) deemed to be borrowed by Messer Finance S.A. ineuro of EUR 30,000,000. The Deemed Loan shall have a first Interest Periodending on 5 June 2001 and EURIBOR in relation to such first Interest Periodshall be deemed to be the same as that which applied to the Term A FacilityLoans so prepaid. The Deemed Loan shall be applied by the Agent immediately

 

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in partial prepayment of the Term Disposal FacilityLoans borrowed by Messer Finance S.A. and to the extent such Term DisposalFacility Loans are in dollars those Term Disposal Facility Loans shall bereduced by such prepayment in euro at the Agent’s Spot Rate of Exchange for thepurchase of dollars with euro on the date of such prepayment, with the netresult being that the Term A Facility is permanently prepaid by EUR30,000,000on the date of the High Yield Proceeds Loan and the Term Disposal Facility ispermanently prepaid by the equivalent in dollars of EUR 30,000,000 on the samedate and the Deemed Loan remains outstanding on such date; and

 

(ii)                        EUR 55,000,000 shall be used in prepayment of the Term C EuroFacility.

 

(e)                                      The Obligor’s Agent may voluntarily prepay (or procure that membersof the Group prepay):

 

(i)                        an amount onaccount of its obligations under Clause 9.4 (*ExcessCash*) after the end of a calendar year but prior to the delivery ofthe financial statements of the Newco 2 Group in respect of such calendar year;and

 

(ii)                     an amount onaccount of its obligations under Clause 9.5 (*AssetDisposals*) prior to the date on which it receives the Net DisposalProceeds of any disposals referred to therein,

** **

**provided that**(a)****such amounts are prepaid in accordancewith Clause 9.8 (*Application of Prepayments*);and (b) the Obligor’s Agent specifies in the relevant notice of prepaymentwhether it is a prepayment for the purposes of paragraph (e)(i) or (e)(ii)above.

## ** **

## **9.12**                     Voluntary prepayment of Revolving Facility Loans

The Borrowerto which a Revolving Facility Loan has been made may, if it gives the Agent notless than five Business Days’ (or such shorter period as the Majority Lendersmay agree) prior notice, prepay the whole or any part of a Revolving FacilityLoan (but if in part, being an amount that reduces the Base Currency Amount ofthe Revolving Facility Loan by a minimum amount of EUR5,000,000).

## ** **

## **9.13**                     PrepaymentPremium

(a)                                      If, in each case on or before the Prepayment Premium Date:

 

(i)                        the whole orany part of any outstanding Prepayment Premium Loan becomes immediately due andpayable pursuant to Clause 9.2 (*Change of control*) or Clause 9.3 (*Flotation orSale*); and/or

 

(ii)                     a Borrowervoluntarily gives the Agent notice, pursuant to Clause 9.11 (*Voluntaryprepayment of Term Facility Loans*), that it wishes to prepay thewhole or any part of a Prepayment Premium Loan,

 

the provisionsof paragraph (b) below will apply **provided that** they will not apply to anyvoluntary prepayment of a Prepayment Premium Loan made in accordance withparagraph (d) of Clause 9.11 (*Voluntary Prepayment of Term Facility Loans*)to the extent such prepayments are made prior to 90 days after the date hereof.

 

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(b)                                     If all or any part of a Prepayment Premium Loan becomes due andpayable in the circumstances set out in paragraph (a) above:

 

(i)                        an amountequal to the Prepayment Premium applicable to the amount of such PrepaymentPremium Loan (excluding any amount which the Obligor’s Agent certifies isprepaid as a result of the provisions of paragraph (a)(ii) above out of theamount of Net Disposal Proceeds or Insurance Proceeds or Acquisition RecoveryProceeds which were not required to be used in mandatory prepayment underClauses 9.5 (*Asset Disposals*), 9.6 (*Insurance Proceeds*) or 9.7 (*AcquisitionRecovery Proceeds*) respectively) which becomes due and payable (the“**ApplicablePrepayment Premium**”) will become immediately due and payable by theBorrower owing such a Prepayment Premium Loan;

 

(ii)                     each ApplicablePrepayment Premium shall be paid to the Agent at the same time as thePrepayment Premium Loan (or any part thereof) to which it relates is repaid tothe Agent; and

 

(iii)                  the Agent shalldistribute each Applicable Prepayment Premium between the Lenders rateablyaccording to their participations in each Loan to which that ApplicablePrepayment Premium relates.

## ** **

## **9.14**                     Right of repayment and cancellation in relation to asingle Lender or Fronting Bank

(a)                                      If:

 

(i)                        any sumpayable to any Lender or Fronting Bank by an Obligor is required to beincreased under paragraph (c) of Clause 14.2 (*Tax gross-up*); or

 

(ii)                     any Lender orFronting Bank claims indemnification from the Company under Clause 14.3 (*Taxindemnity*) or Clause 15.1 (*Increased costs*),

 

theObligor’s Agent may, whilst the circumstance giving rise to the requirement orindemnification continues, give the Agent notice:

 

(A)            (ifsuch circumstance relates to a Lender) of cancellation of the Commitment ofthat Lender and its intention to procure the repayment of that Lender’sparticipation in the Loans; or

 

(B)              (ifsuch circumstance relates to a Fronting Bank) of cancellation of or of theObligor’s Agent’s intention to procure that Cash Collateral is provided  in respect of that Fronting Bank’s Lettersof Credit and Bank Guarantees.

 

(b)                                     On receipt of a notice referred to in paragraph (a) above, theCommitment of that Lender shall immediately be reduced to zero.

 

(c)                                      On the last day of each Interest Period or, as the case may be, Termwhich ends after the Obligor’s Agent has given notice under paragraph (a) above(or, if earlier, the date specified by the Obligor’s Agent in that notice), theBorrowers shall:

 

(A)            (ifthe circumstance relates to a Lender) repay that Lender’s participation in theLoans;

 

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(B)              (ifthe circumstance relates to a Lender) procure either that such Lender’s L/CProportion of each relevant Letter of Credit be reduced to zero (by reductionof the amount of that Letter of Credit in an amount equal to that Lender’s L/CProportion) or that Cash Collateral be provided to the Agent in an amount equalto such Lender’s L/C Proportion of that Letter of Credit);

 

(C)              (ifthe circumstance relates to a Lender) procure either that such Lender’sGuarantee Proportion of each relevant Bank Guarantee be reduced to zero (byreduction of the amount of that Bank Guarantee in an amount equal to thatLender’s Guarantee Proportion) or that Cash Collateral be provided to the Agentin an amount equal to such Lender’s Guarantee Proportion of that BankGuarantee); and

 

(D)             (ifthe circumstance relates to a Fronting Bank) procure that the relevant FrontingBank’s liability under any Letters of Credit and Bank Guarantees issued by itshall either be reduced to zero or otherwise secured by the relevant Borrowerproviding Cash Collateral in an amount equal to that Fronting Bank’s maximumactual and contingent liabilities under those Letters of Credit and BankGuarantees.

## ** **

## **9.15**                     Restrictions

(a)                                      Any notice of cancellation or prepayment given by any Party underthis Clause 9 shall be irrevocable and, unless a contrary indication appears inthis Agreement, shall specify the date or dates upon which the relevantcancellation or prepayment is to be made and the amount of that cancellation orprepayment.

 

(b)                                     Any prepayment under this Agreement shall be made together withaccrued interest on the amount prepaid and, subject to any Break Costs, withoutpremium or penalty save as provided in Clause 9.13 (*Prepayment Premium*).

 

(c)                                      No Borrower may reborrow any part of a Term Facility which isprepaid.

 

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

 

(e)                                      The Borrowers shall not repay or prepay all or any part of theLoans, reduce the liabilities of the Lenders or Fronting Banks or provide CashCollateral in respect of Letters of Credit or Bank Guarantees or cancel all orany part of the Commitments except at the times and in the manner expresslyprovided for in this Agreement.

 

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

 

(g)                                     If the Agent receives a notice under this Clause 9 it shall promptlyforward a copy of that notice to either the Obligor’s Agent or the affectedLender, as appropriate.

## ** **

## **9.16**                     Automaticcancellation

(a)                                      If the Closing Date does not occur by 30 June 2001 then theFacilities shall be automatically cancelled on that date.

 

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(b)                                     Ifthe Fee Letters relating to the fees referred to in Clauses 13.5 (*Arrangementfee*) and 13.6 (*Agency Fee*) and 13.7 (*Security Trustee fee*) arenot all executed, dated and effective within two Business Days of the date ofthis Agreement then the Facilities shall be automatically cancelled at 11.59pmon second Business Day to occur after the date of this Agreement.

 

(c)                                      Ifthe certificate referred to in Clause 26.11 (*MGG Accession*) is notdelivered to the Agent by 11.59 p.m. on 2 May 2001, then the Facilities shallbe automatically cancelled at 11.59 p.m. on 2 May 2001.

 

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**SECTION 5**

 

**COSTS OF UTILISATION**

# **10.**                           INTEREST

 

## **10.1**                     Calculationof interest

The rate ofinterest on each Loan for each Interest Period is the percentage rate per annumwhich is the aggregate of the applicable:

 

(a)                                      Margin;

 

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

 

(c)                                      MandatoryCost, if any.

## ** **

## **10.2**                     Marginratchets

(a)                                      TheMargin shall, in respect of all Term A Facility Loans and all RevolvingFacility Loans:

 

(i)                        from the datehereof until the later of (a) the date on which both the Term Disposal Facilityhas been repaid in full and the conditions specified in Clause 23.38 (*Total DebtRelief Amount*) have been met and (b) the date falling 12 monthsafter the date hereof, be the Initial Margin for the relevant Facility; and

 

(ii)                     at any othertime, subject to Clause 10.4 (*Default Margin*) and in accordance with theprovisions of Clause 10.3 (*Margin Changes*), be the Initial Margin forthe relevant Facility reduced by the amount determined by the Leverage Ratiofor the then most recently ended Relevant Period in respect of which financialstatements have been delivered to the Agent pursuant to paragraph (a), (b) or(d) of Clause 21.1 (*Financial Statements*) in accordance withthe table set out below **provided that** if, but for this proviso, theapplicable Margin would reduce by more than 0.25 at any one time then it shallonly reduce by 0.25.

 
| **Leverage  Ratio**                                |   | **Amount  of Reduction from   Initial Margin** |   |
|----------------------------------------------------|--------|------------------------------------------------|--------|
| Equal to or greater than 3.5:1                     |   | 0                                              |   |
| Less than 3.5:1 but equal to or greater than 3.0:1 |   | 0.25                                           |   |
| Less than 3.0:1 but equal to or greater than 2.5:1 |   | 0.50                                           |   |
| Less than 2.5:1 but equal to or greater than 2.0:1 |   | 0.75                                           |   |
| Less than 2.0:1                                    |   | 1.00                                           |   |

## ** **

(b)                                     TheMargin shall, in respect of all Term B Euro Facility Loans and all Term BDollar Facility Loans:

 

(i)                        from the datehereof until the later of the (a) date on which both the Term Disposal Facilityhas been repaid in full and the conditions specified in Clause

 

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23.38 (*Total Debt Relief Amount*) have been met and (b) the datefalling 12 months after the date hereof, be the Initial Margin for the Term BFacilities; and

 

(ii)                     subject to Clause10.4 (*DefaultMargin*) and in accordance with the provisions of Clause 10.3 (*MarginChanges*), at any time when the Leverage Ratio for the then mostrecently ended Relevant Period in respect of which financial statements havebeen delivered to the Agent pursuant to paragraph (a), (b) or (d) of Clause21.1 (*FinancialStatements*) is less than 3:1, be the Initial Margin for thatFacility less 0.25.

## ** **

## **10.3**                     Marginchanges

Any reductionor increase to the Margin provided for by Clause 10.2 (*Margin ratchets*) shall takeeffect in relation to all future Loans with effect from the date the Agentreceives the Compliance Certificate (together with the accompanyingconsolidated financial statements of Newco 2 and, if applicable, the relevantAuditor’s Report) in accordance with Clause 21.2 (*Compliance Certificates*) forits most recent Financial Quarter.  Forthese purposes, if there is to be a reduction or increase in the Marginprovided for by Clause 10.2 (*Margin Ratchets*) and there are anyexisting Term A Facility Loans or Term B Euro Facility Loans outstanding atsuch time, then at the last day of each then current Interest Period relatingto each such Term A Facility Loan or Term B Euro Facility Loan (as applicable)there shall be deemed to be a repayment of such Term A Facility Loan or Term BEuro Facility Loan (as applicable) and an immediate re-borrowing of a Term AFacility Loan or Term B Euro Facility Loan (as applicable) in the same amountand same currency as the Term A Facility Loan or Term B Euro Facility Loan (asapplicable) deemed repaid and any change in the Margin applicable to each suchnew Term A Facility Loan or Term B Euro Facility Loan (as applicable) shalltake effect in relation to such new Term A Facility Loan or Term B EuroFacility Loan (as applicable).

## ** **

## **10.4**                     DefaultMargin

No reductionin the Margin provided for by Clause 10.2 (*Margin Ratchets*) will be implemented fromthe date (a “**No Ratchet Date**”) determined by the Agent as being the date onwhich an Event of Default has occurred or come into existence until the date (a“**RatchetDate**”) specified by the Agent as being the date on which it has beendemonstrated to its satisfaction that such Event of Default is no longercontinuing.  The Margin applicable toany Loan outstanding during the period from any No Ratchet Date until the correspondingRatchet Date shall be the Initial Margin. The Agent shall promptly notify the Lenders and the Obligor’s Agent ofany determination that an Event of Default has occurred or exists or, as thecase may be, that it has been demonstrated to its reasonable satisfaction thatsuch is no longer continuing.

## ** **

## **10.5**                     Paymentof interest

The Borrowerto which a Loan has been made shall pay accrued interest on that Loan on thelast day of each Interest Period (and, if the Interest Period is longer thansix Months, on the dates falling at six Monthly intervals after the first dayof the Interest Period).

## ** **

## **10.6**                     Defaultinterest

(a)                                      Ifan Obligor fails to pay any amount payable by it under a Finance Document onits due date, interest shall accrue on the overdue amount from the due date upto the date

 

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of actual payment (both before and after judgment) at a rate one percent higher than the rate which would have been payable if the overdue amounthad, during the period of non-payment, constituted a Loan in the currency ofthe overdue amount for successive Interest Periods, each of a duration selectedby the Agent (acting reasonably).  Anyinterest accruing under this Clause 10.6 shall be immediately payable by therelevant Obligor on demand by the Agent.

 

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

## ** **

## **10.7**                     Notification of rates of interest

The Agentshall promptly notify the Lenders and the relevant Borrower of thedetermination of a rate of interest under this Agreement.

# ** **

# **11.**                           INTERESTPERIODS AND TERMS

## ** **

## **11.1**                     Selection of Interest Periods and Terms

(a)                                      ABorrower (or the Obligor’s Agent on behalf of a Borrower) may select:

 

(i)                        an InterestPeriod for a Loan in the Utilisation Request for that Loan or (if the Loan hasalready been borrowed) in a Selection Notice; or

 

(ii)                     a Term for aLetter of Credit or Bank Guarantee in the Utilisation Request for that Letterof Credit or, as the case may be, Bank Guarantee.

 

(b)                                     EachSelection Notice for a Term Facility Loan is irrevocable and must be deliveredto the Agent by the Borrower (or the Obligor’s Agent on behalf of a Borrower)to which that Term Facility Loan was made not later than the Specified Time.

 

(c)                                      Ifa Borrower (or the Obligor’s Agent) fails to deliver a Selection Notice to theAgent in accordance with paragraph (b) above, the relevant Interest Periodwill, subject to Clause 11.2 (*Changes to Interest Periods*) and paragraph(j) of this Clause 11.1, be one Month.

 

(d)                                     Subjectto this Clause 11, a Borrower (or the Obligor’s Agent) may select an InterestPeriod of one, two, three or six Months or any other period agreed between theObligor’s Agent and the Agent (acting on the instructions of all theLenders).  In addition a Borrower (orthe Obligor’s Agent on its behalf) may select (in relation to a Term Facility)an Interest Period of less than one Month, if necessary to ensure that thereare Loans in respect of that Term Facility (with an aggregate Base CurrencyAmount equal to or greater than the relevant Repayment Instalment) which havean Interest Period ending on a Term Disposal Facility Repayment Date, Term AFacility Repayment Date, Term B Facility Repayment Date or, as the case may be,Term C Facility Repayment Date for the relevant Borrower(s) to make suchRepayment Instalment due on that date.

 

(e)                                      ABorrower (or the Obligor’s Agent on behalf of a Borrower) may select a Term fora Letter of Credit or a Bank Guarantee of a period of up to twelve months,ending on or before the Termination Date for the relevant Revolving Facility.

 

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(f)                                        An Interest Period for a Loan shall not extend beyond theTermination Date applicable to its Facility. A Term for a Letter of Credit or a Bank Guarantee shall not extendbeyond the Termination Date for the relevant Revolving Facility.

 

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

 

(h)                                     ARevolving Facility Loan has one Interest Period only, which shall start on theUtilisation Date.  A Term for a Letterof Credit or a Bank Guarantee shall start on the Utilisation Date.

 

(i)                                         Prior to the last Syndication Date and subject to paragraph (j)below, Interest Periods shall be one month or such other period as specified bythe Agent (acting reasonably) and any Interest Period which would otherwise endduring the month preceding or extend beyond a Syndication Date shall end onthat Syndication Date. Consequently (for the avoidance of doubt) no SelectionNotices are required to be delivered by any Borrower prior to the lastSyndication Date.

 

(j)                                         The first Interest Period for each Loan made on the Closing Dateshall be three Business Days and the first Interest Period for the Deemed Loanreferred to in paragraph (d) of Clause 9.11 (*Voluntary prepayment of Term FacilityLoans*) shall end on 5 June 2001.

## ** **

## **11.2**                     Changes to Interest Periods

(a)                                      Priorto determining the interest rate for a Term Facility Loan, the Agent mayshorten an Interest Period for any Term Facility Loan to ensure there aresufficient Loans for the relevant Term Facility with Interest Periods ending ona Term Disposal Facility Repayment Date, Term A Facility Repayment Date, Term BFacility Repayment Date or, as the case may be, Term C Facility Repayment Datefor the relevant Borrower(s) to make the Repayment Instalment due on that date.

 

(b)                                     Ifthe Agent makes any of the changes to an Interest Period referred to in thisClause 11.2, it shall promptly notify the Obligor’s Agent and the Lenders.

## ** **

## **11.3**                     Non-BusinessDays

If an InterestPeriod or Term would otherwise end on a day which is not a Business Day, thatInterest Period or, as the case may be, Term will instead end on the nextBusiness Day in that calendar month (if there is one) or the preceding BusinessDay (if there is not unless such Interest Period is for one day, in which caseit shall be the immediately succeeding Business Day).

## ** **

## **11.4**                     Consolidation and division of Term Facility Loans

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

 

(i)                        relate toLoans under the same Term Facility and in the same currency; and

 

(ii)                     end on the samedate; and

 

(iii)                  are made to the sameBorrower

 

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those TermFacility Loans will, unless that Borrower (or the Obligor’s Agent on itsbehalf) specifies to the contrary in the Selection Notice for the next InterestPeriod, be consolidated into, and treated as, a single Loan under the relevantTerm Facility on the last day of the Interest Period.

 

(b)                                     Subjectto Clause 4.4 (*Maximum number of Loans, Letters of Credit or Bank Guarantee*)and Clause 5.3 (*Currency and amount*), if a Borrower (or the Obligor’s Agenton its behalf) requests in a Selection Notice that a Term Facility Loan bedivided into two or more Loans under the relevant Term Facility, that TermFacility Loan will, on the last day of its Interest Period, be so divided withBase Currency Amounts specified in that Selection Notice, being an aggregateBase Currency Amount equal to the Base Currency Amount of the Term FacilityLoan immediately before its division.

 

(c)                                      ATerm Facility Loan shall be divided into a number of separate Loans with thesame initial Interest Periods as the Term Facility Loan immediately prior tosuch division on the Debtco Exit Date if the provisions of Clause 26.8 (*Transfers onDebtco Exit Date*) so require.

# ** **

# **12.**                           CHANGES TO THE CALCULATION OF INTEREST

## ** **

## **12.1**                     Absenceof quotations

Subject toClause 12.2 (*Market disruption*), if LIBOR or, if applicable, EURIBOR isto be determined by reference to the Reference Banks but a Reference Bank doesnot supply a quotation by the Specified Time on the Quotation Day, theapplicable LIBOR or EURIBOR shall be determined on the basis of the quotationsof the remaining Reference Banks.

## ** **

## **12.2**                     Marketdisruption

(a)                                      Ifa Market Disruption Event (as defined in paragraph (b) below) occurs inrelation to a Loan for any Interest Period, then the rate of interest on eachLender’s share of that Loan for the Interest Period shall be the rate per annumwhich is the sum of:

 

(i)                        the Margin;

 

(ii)                     the rate notifiedto the Agent by that Lender (acting in good faith) as soon as practicable andin any event before interest is due to be paid in respect of that InterestPeriod, to be that which expresses as a percentage rate per annum the cost tothat Lender of funding its participation in that Loan from whatever source itmay reasonably select; and

 

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

 

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

 

(i)                        at or aboutnoon on the Quotation Day for the relevant Interest Period the Screen Rate isnot available and none or only one of the Reference Banks supplies a rate tothe Agent to determine LIBOR or, if applicable, EURIBOR for the relevantcurrency and Interest Period; or

 

(ii)                     before close ofbusiness in London on the Quotation Day for the relevant Interest Period, theAgent receives notifications from a Lender or Lenders 

 

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(whose participations in a Loan exceed 50 per cent. of that Loan) thatthe cost to it of obtaining matching deposits in the Relevant Interbank Marketwould be in excess of LIBOR or, if applicable, EURIBOR.

## ** **

## **12.3**                     Alternative basis of interest or funding

(a)                                      Ifa Market Disruption Event occurs and the Agent or the Obligor’s Agent sorequires, the Agent and the Obligor’s Agent shall enter into negotiations (fora period of not more than thirty days) with a view to agreeing a substitutebasis for determining the rate of interest.

 

(b)                                     Anyalternative basis agreed pursuant to paragraph (a) above shall, with the priorconsent of all the Lenders and the Obligor’s Agent, be binding on all Partiesbut when the Market Disruption Event ceases to apply any such alternative basisshall cease to apply and the other provisions of this Agreement relating todetermining the rate of interest shall apply once more.

## ** **

## **12.4**                     BreakCosts

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

 

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

# ** **

# **13.**                           FEES

## ** **

## **13.1**                     Commitmentfee

(a)                                      TheObligor’s Agent shall, in respect of each Facility and for the period from thedate of this Agreement until (but excluding) the earlier to occur of 20 April2001 and the Closing Date, pay to the Agent (for the account of each Lender) acommitment fee in the relevant Base Currency computed at a rate of 0.375% perannum on each Lender’s Available Commitment under each Facility.

 

(b)                                     Theaccrued commitment fees under paragraph (a) above will only become payable onthe earlier to occur of 20 April 2001 and the Closing Date (the “**FirstCommitment Fee Date**”).  Ifthe Obligor’s Agent cancels the Facilities in full prior to the FirstCommitment Fee Date no commitment fees will be payable under this Agreement.

 

(c)                                      TheObligor’s Agent shall, in respect of each Facility, from the earlier to occurof the Closing Date and 20 April 2001 (the “**Relevant Date**”) pay to theAgent (for the account of each Lender) a commitment fee in the relevant BaseCurrency computed at a rate of 0.75% per annum on each Lender’s AvailableCommitment under each Facility for the Availability Period applicable to thatFacility (commencing from the Relevant Date).

 

(d)                                     Theaccrued commitment fees under paragraph (c) above are payable on the last dayof each successive period of three Months which ends during the relevantAvailability 

 

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Period (commencing from the earlier to occur of the Closing Date and 20April 2001), on the last day of the relevant Availability Period and on thedate the relevant Lender’s Commitment is cancelled.

## ** **

## **13.2**                     Letter of Credit commission

(a)                                      EachBorrower shall, in respect of each Letter of Credit issued at its request, payto the Agent (for the account of each Lender) (for distribution in proportionto each Lender’s L/C Proportion of that Letter of Credit) a letter of creditcommission in the relevant Base Currency at the L/C Commission Rate on themaximum actual and contingent liabilities of the Fronting Bank under therelevant Letter of Credit.

 

(b)                                     Theaccrued letter of credit commission shall be paid on the last day of eachsuccessive period of three Months which ends during the Term of the relevantLetter of Credit and on the relevant Expiry Date.

## ** **

## **13.3**                     Bank Guarantee commission

(a)                                      EachBorrower shall, in respect of each Bank Guarantee issued at its request, pay tothe Agent (for the account of each Lender) (for distribution in proportion toeach Lender’s Guarantee Proportion of that Bank Guarantee) a bank guaranteecommission in the relevant Base Currency at the Guarantee Commission Rate onthe maximum actual and contingent liabilities of the Fronting Bank under therelevant Bank Guarantee.

 

(b)                                     Theaccrued bank guarantee commission shall be paid on the last day of eachsuccessive period of three Months which ends during the Term of the relevantBank Guarantee and on the relevant Expiry Date.

## ** **

## **13.4**                     FrontingBank Fee

Each Borrowershall, in respect of each Letter of Credit and Bank Guarantee issued at itsrequest, pay to the relevant Fronting Bank a fee in the relevant Base Currencyin the amounts and at the times agreed between such Fronting Bank and theObligor’s Agent in a Fee Letter.

## ** **

## **13.5**                     Arrangementfee

The Obligor’sAgent shall procure that MGG pays to the relevant Arrangers an arrangement feein the amount and at the times agreed in a Fee Letter.

## ** **

## **13.6**                     Agencyfee

The Obligor’sAgent shall procure that MGG pays to the Agent (for its own account) an agencyfee in the amount and at the times agreed in a Fee Letter.

## ** **

## **13.7**                     SecurityTrustee fee

The Obligor’sAgent shall procure that MGG pays to the Security Trustee (for its own account)a security trustee fee in the amount and at the times agreed in a Fee Letter.

 

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**SECTION 6**

** **

**ADDITIONAL PAYMENTOBLIGATIONS**

# ** **

# **14.**                           TAXGROSS UP AND INDEMNITIES

## ** **

## **14.1**                     Definitions

(a)                                      Inthis Clause 14:

 

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

 

“**QualifyingLender**” means:

 

(i)                        in respect ofa payment made by an Obligor incorporated in the United Kingdom, a Lender whichis:

 

(A)            withinthe charge to United Kingdom corporation tax as respects that payment and thatis a Lender in respect of an advance made by a person that was a bank (asdefined for the purpose of section 349 of the Taxes Act in section 840A of theTaxes Act) at the time that advance was made; or

 

(B)              aTreaty Lender with respect to the United Kingdom;

 

(ii)                     in respect ofpayment made by an Obligor which is incorporated in Germany, means any Lender;

 

(iii)                  in respect of apayment made by an Obligor which is incorporated in the United States ofAmerica or any state thereof, a Lender which is:

 

(A)            createdor organised under the laws of the United States of America or of any statethereof; or

 

(B)              aTreaty Lender with respect to the United States of America; or

 

(C)              entitledto receive payments under this Agreement without deduction or withholding ofany United States federal income Taxes as a result of such payments beingeffectively connected with the conduct by such Lender of a trade or businesswithin the United States, provided such Lender timely has delivered to theAgent for transmission to the Obligor making such payment two original copiesof either (1) Internal Revenue Service Form W-8ECI (or any successor form)certifying that the payments made pursuant to the Finance Documents areeffectively connected with the conduct by that Lender of a trade or businesswithin the United States or (2) Internal Revenue Service Form W-8BEN (or anysuccessor form) claiming exemption from withholding in respect of payments madepursuant to the Finance Documents under the portfolio interest exemption or (3)such other applicable form prescribed by the IRS certifying as to such Lender’sentitlement to exemption from United States withholding tax 

 

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with respect to all payments to be made to such Lenderunder the Finance Documents; and

 

(iv)                 in respect of apayment by an Obligor not incorporated in the United Kingdom, the United Statesof America or Germany, any Lender.

 

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

 

“**TaxDeduction**” means a deduction or withholding for or on account of Taxfrom a payment under a Finance Document.

 

“**Tax Payment**”means an increased payment made by an Obligor to a Finance Party under Clause14.2 (*Taxgross-up*) or a payment under Clause 14.3 (*Tax indemnity*).

 

“**TreatyLender**” means, in respect of a jurisdiction, a Lender entitled underthe provisions of a double taxation treaty to receive payments of interest froma person resident in such jurisdiction without a Tax Deduction (subject to thecompletion of any necessary procedural formalities).

 

(b)                                     Inthis Clause 14 a reference to “determines” or “determined” means adetermination made in the absolute discretion of the person making thedetermination.

 

## **14.2**                     Taxgross-up

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

 

(b)                                     TheObligor’s Agent or a Lender shall promptly upon becoming aware that an Obligormust make a Tax Deduction (or that there is any change in the rate or the basisof a Tax Deduction) notify the Agent accordingly.  If the Agent receives such notification from a Lender it shallnotify the Obligor’s Agent and that Obligor.

 

(c)                                      Ifa Tax Deduction is required by law to be made by an Obligor in one of thecircumstances set out in paragraph (d) below, the amount of the payment duefrom that Obligor shall be increased to an amount which (after making any TaxDeduction) leaves an amount equal to the payment which would have been due ifno Tax Deduction had been required.

 

(d)                                     Thecircumstances referred to in paragraph (c) above are where a person entitled tothe payment:

 

(i)                        is the Agentor an Arranger (on its own behalf);  or

 

(ii)                     is a QualifyingLender as respects such payment, unless that Qualifying Lender is a TreatyLender and the Obligor making the payment is able to demonstrate the TaxDeduction is required to be made as a result of the failure of that QualifyingLender to comply with paragraph (g) below; or

 

(iii)                  is not or has ceasedto be a Qualifying Lender to the extent that this altered status results fromany change after the date of this Agreement in (or in the interpretation,administration, or application of) any law or double taxation

 

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agreement or any published practice or published concession of anyrelevant taxing authority.

 

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

 

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

 

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

## ** **

## **14.3**                     Taxindemnity

(a)                                      TheObligor’s Agent shall (within ten Business Days of demand by the Agent) pay toa Protected Party an amount equal to the loss, liability or cost which thatProtected Party determines will be or has been (directly or indirectly)suffered by that Protected Party for or on account of Tax in relation to anysum received or receivable (or any sum deemed for the purposes of Tax to be receivedor receivable) under a Finance Document.

 

(b)                                     Paragraph(a) above shall not apply with respect to any Tax assessed on a ProtectedParty:

 

(i)                        under the lawof the jurisdiction in which that Protected Party is incorporated or, ifdifferent, the jurisdiction (or jurisdictions) in which that Protected Party istreated as resident for tax purposes; or

 

(ii)                     under the law ofthe jurisdiction in which that Protected Party’s Facility Office is located inrespect of amounts received or receivable in that jurisdiction,

 

if that Tax isimposed on or calculated by reference to the net income received or receivable(but not any sum deemed to be received or receivable) by that Protected Party.

 

(c)                                      AProtected Party making, or intending to make a claim pursuant to paragraph (a)above shall promptly notify the Agent of the event which will give, or hasgiven, rise to the claim, following which the Agent shall notify the Obligor’sAgent.

 

(d)                                     AProtected Party shall, on receiving a payment from an Obligor under this Clause14.3, notify the Agent.

## ** **

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## **14.4**                     TaxCredit

If an Obligormakes a Tax Payment and the relevant Finance Party determines in good faiththat:

 

(a)                                      aTax Credit is attributable to that Tax Payment; and

 

(b)                                     thatFinance Party has obtained, utilised and retained that Tax Credit,

 

the FinanceParty shall pay an amount to the Obligor which that Finance Party determineswill leave it (after that payment) in the same after-Tax position as it wouldhave been in had the Tax Payment not been made by the Obligor.

## ** **

## **14.5**                     Stamptaxes

The Obligor’sAgent shall pay and, within ten Business Days of demand, indemnify each FinanceParty against any cost, loss or liability that Finance Party incurs in relationto all stamp duty, registration and other similar Taxes payable in respect ofany Finance Document.

## ** **

## **14.6**                     Valueadded tax

(a)                                      Allconsideration payable under a Finance Document by an Obligor to a Finance Partyshall be deemed to be exclusive of any VAT. If VAT is chargeable, the Obligor shall pay to the Finance Party (inaddition to and at the same time as paying the consideration) an amount equalto the amount of the VAT.

 

(b)                                     Wherea Finance Document requires an Obligor to reimburse a Finance Party for anycosts or expenses, that Obligor shall also at the same time pay and indemnifythat Finance Party against all VAT incurred by that Finance Party in respect ofthe costs or expenses save to the extent that that Finance Party is entitled torepayment or credit in respect of the VAT.

# ** **

# **15.**                           INCREASEDCOSTS

## ** **

## **15.1**                     Increasedcosts

(a)                                      Subjectto Clause 15.3 (*Exceptions*) the Obligor’s Agent shall, within ten BusinessDays of a demand by the Agent, pay for the account of a Finance Party theamount of any Increased Costs incurred by that Finance Party or any of itsAffiliates as a result of (i) the introduction of or any change in (or in theinterpretation or application of) any law or regulation or (ii) compliance withany law or regulation made after the date of this Agreement.

 

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

 

(i)                        a reduction inthe rate of return from the Facilities or on a Finance Party’s (or itsAffiliate’s) overall capital;

 

(ii)                     an additional orincreased cost; or

 

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

 

which isincurred or suffered by a Finance Party or any of its Affiliates to the extentthat it is attributable to that Finance Party having entered into itsCommitment or an

 

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AncillaryCommitment or funding or performing its obligations under any Finance Document,Letter of Credit or Bank Guarantee.

## ** **

## **15.2**                     Increasedcost claims

(a)                                      AFinance Party intending to make a claim pursuant to Clause 15.1 (*Increasedcosts*) shall notify the Agent of the event giving rise to the claimas soon as reasonably practicable after its relevant Facility Office has becomeaware of such event giving rise to such claim, following which the Agent shallpromptly notify the Obligor’s Agent.

 

(b)                                     EachFinance Party shall, as soon as practicable after a demand by the Agent,provide a certificate confirming (in reasonable detail) the amount of itsIncreased Costs.

## ** **

## **15.3**                     Exceptions

(a)                                      Clause15.1 (*Increasedcosts*) does not apply to the extent any Increased Cost is:

 

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

 

(ii)       compensatedfor by Clause 14.3 (Tax indemnity) (or would have been compensated for underClause 14.3 (Tax indemnity) but was not so compensated solely because one ofthe exclusions in paragraph (b) of Clause 14.3 (Tax indemnity) applied);

 

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

 

(iv)      attributableto the wilful or grossly negligent breach by the relevant Finance Party or itsAffiliates of any law or regulation.

 

(b)                                     Inthis Clause 15.3, a reference to a “**Tax Deduction**” has the same meaning givento the term in Clause 14.1 (*Definitions*).

# ** **

# **16.**                           OTHERINDEMNITIES

## ** **

## **16.1**                     Currencyindemnity

(a)                                      Ifany sum due from the Obligor’s Agent or an Obligor under the Finance Documents(a “**Sum**”),or any order, judgment or award given or made in relation to a Sum, has to beconverted from the currency (the “**First Currency**”) in which that Sum ispayable into another currency (the “**Second Currency**”) for the purpose of:

 

(i)                        making orfiling a claim or proof against the Obligor’s Agent or that Obligor;

 

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

 

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

 

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(b)                                     TheObligor’s Agent and each Obligor waives any right it may have in anyjurisdiction to pay any amount under the Finance Documents in a currency orcurrency unit other than that in which it is expressed to be payable.

## ** **

## **16.2**                     Otherindemnities

The Obligor’sAgent shall (or shall procure that an Obligor will), within ten Business Daysof demand, indemnify each Lender and each Fronting Bank against any cost, lossor liability incurred by that Lender or, as the case may be, Fronting Bank as aresult of:

 

(a)                                      theoccurrence of any Event of Default;

 

(b)                                     afailure by the Obligor’s Agent or an Obligor to pay any amount due under aFinance Document on its due date, including without limitation, any cost, lossor liability arising as a result of Clause 30 (*Sharing among the Lenders*);

 

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

 

(d)                                     issuingor making arrangements to issue a Letter of Credit or Bank Guarantee  requested by a Borrower in a UtilisationRequest but not issued by reason of the operation of any one or more of theprovisions of this Agreement; or

 

(e)                                      aLoan (or part of a Loan) not being prepaid in accordance with a notice ofprepayment given by a Borrower or the Obligor’s Agent.

## ** **

## **16.3**                     Indemnityto the Agent

The Obligor’sAgent shall promptly indemnify the Agent against any cost, loss or liabilityincurred by the Agent (acting reasonably) as a result of:

 

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

 

(b)                                     enteringinto or performing any foreign exchange contract for the purposes of Clause 6 (*OptionalCurrencies*); or

 

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

# ** **

# **17.**                           MITIGATIONBY THE LENDERS

## ** **

## **17.1**                     Mitigation

(a)                                      EachFinance Party shall, in consultation with the Obligor’s Agent, take allreasonable steps to mitigate any circumstances which arise and which wouldresult in any amount becoming payable under, or cancelled pursuant to, any ofClause 9.1 (*Illegality*),Clause 14 (*Taxgross-up and indemnities*) or Clause 15 (*Increased costs*) including(but not limited to) transferring its rights and obligations under the FinanceDocuments to another Affiliate or Facility Office.

 

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

## ** **

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## **17.2**                     Limitationof liability

(a)                                      TheObligor’s Agent shall indemnify each Finance Party for all costs and expensesreasonably incurred by that Finance Party as a result of steps taken by itunder Clause 17.1 (*Mitigation*).

 

(b)                                     AFinance Party is not obliged to take any steps under Clause 17.1 (*Mitigation*)if, in the opinion of that Finance Party (acting reasonably), to do so might beprejudicial to it.

# ** **

# **18.**                           COSTS ANDEXPENSES

## ** **

## **18.1**                     Transactionexpenses

The Obligor’sAgent shall promptly on demand pay the Agent and the Arrangers the amount ofall costs and expenses (including legal fees) reasonably incurred by any ofthem in connection with the negotiation, preparation, printing, execution andsyndication of:

 

(a)                                      thisAgreement and any other documents referred to in this Agreement; and

 

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

## ** **

## **18.2**                     Amendmentcosts

If (a) anObligor requests an amendment, waiver or consent or (b) an amendment isrequired pursuant to Clause 31.9 (*Change of currency*), the Obligor’s Agentshall, within ten Business Days of demand, reimburse the Agent for the amountof all costs and expenses (including legal fees) reasonably incurred by theAgent in responding to, evaluating, negotiating or complying with that requestor requirement.

## ** **

## **18.3**                     Enforcementcosts

The Obligor’sAgent shall, within ten Business Days of demand, pay to each Finance Party theamount of all costs and expenses (including legal fees) incurred by thatFinance Party in connection with the enforcement of, or the preservation of anyrights under, any Finance Document.

 

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**SECTION 7**

 

**GUARANTEE**

# ** **

# **19.**                           GUARANTEEAND INDEMNITY

## ** **

## **19.1**                     Guaranteeandindemnity

Each Guarantorirrevocably and unconditionally jointly and severally:

 

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

 

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

 

(c)                                      indemnifieseach Finance Party immediately on demand against any cost, loss or liabilitysuffered by that Finance Party if any obligation guaranteed by it is or becomesunenforceable, invalid or illegal.  Theamount of the cost, loss or liability shall be equal to the amount which thatFinance Party would otherwise have been entitled to recover.

## ** **

## **19.2**                     Continuingguarantee

This guaranteeis a continuing guarantee and will extend to the ultimate balance of sumspayable by any Obligor under the Finance Documents, regardless of anyintermediate payment or discharge in whole or in part.

## ** **

## **19.3**                     Reinstatement

If any paymentby an Obligor or any discharge given by a Finance Party (whether in respect ofthe obligations of any Obligor or any security for those obligations or otherwise)is avoided or reduced as a result of insolvency or any similar event:

 

(a)                                      theliability of each Obligor shall continue as if the payment, discharge,avoidance or reduction had not occurred; and

 

(b)                                     eachFinance Party shall be entitled to recover the value or amount of that securityor payment from each Obligor, as if the payment, discharge, avoidance orreduction had not occurred.

## ** **

## **19.4**                     Waiverof defences

Theobligations of each Guarantor under this Clause 19 will not be affected by anact, omission, matter or thing which, but for this Clause, would reduce,release or prejudice any of its obligations under this Clause 19 (withoutlimitation and whether or not known to it or any Finance Party) including:

 

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

 

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

 

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

 

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

 

(e)                                      anyamendment (however fundamental) or replacement of a Finance Document or anyother document or security;

 

(f)                                        any unenforceability, illegality or invalidity of any obligation ofany person under any Finance Document or any other document or security; or

 

(g)                                     anyinsolvency or similar proceedings.

## ** **

## **19.5**                     Immediaterecourse

Each Guarantorwaives any right it may have of first requiring any Finance Party (or anytrustee or agent on its behalf) to proceed against or enforce any other rightsor security or claim payment from any person before claiming from thatGuarantor under this Clause 19.  Thiswaiver applies irrespective of any law or any provision of a Finance Documentto the contrary.

## ** **

## **19.6**                     Appropriations

Until allamounts which may be or become payable by the Obligors under or in connectionwith the Finance Documents have been irrevocably paid in full, each FinanceParty (or any trustee or agent on its behalf) may:

 

(a)                                      refrainfrom applying or enforcing any other moneys, security or rights held orreceived by that Finance Party (or any trustee or agent on its behalf) inrespect of those amounts, or apply and enforce the same in such manner andorder as it sees fit (whether against those amounts or otherwise) and noGuarantor shall be entitled to the benefit of the same; and

 

(b)                                     holdin an interest-bearing suspense account any moneys received from any Guarantoror on account of any Guarantor’s liability under this Clause 19.

## ** **

## **19.7**                     Deferral of Guarantors’ rights

Until allamounts which may be or become payable by the Obligors under or in connectionwith the Finance Documents have been irrevocably paid in full and unless theAgent otherwise directs, no Guarantor will exercise any rights which it mayhave by reason of performance by it of its obligations under the FinanceDocuments:

 

(a)                                      tobe indemnified by an Obligor;

 

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

 

(c)                                      totake the benefit (in whole or in part and whether by way of subrogation orotherwise) of any rights of the Finance Parties under the Finance Documents orof any

 

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other guarantee or security taken pursuant to, or in connection with,the Finance Documents by any Finance Party.

## ** **

## **19.8**                     Additionalsecurity

This guaranteeis in addition to and is not in any way prejudiced by any other guarantee orsecurity now or subsequently held by any Finance Party.

## ** **

## **19.9**                     Limitation on German Obligor Guarantee

(a)                                      Tothe extent that the guarantee and indemnity in this Clause 19 is given by aGerman Obligor which is constituted in the form of a GmbH or GmbH & Co. KG(a “**RelevantGerman Obligor**”) to guarantee obligations of its (direct orindirect) shareholder or a person related to such shareholder within themeaning of Sections 15 et seq. of the German Stock Corporation Act (forclarification purposes, this does not include a Subsidiary of such GermanObligor), the Finance Parties agree that the Agent shall not make any demandagainst such Relevant German Obligor under the guarantee and indemnity untilthe earlier of:

 

(i)                        45 days afterthe notification in writing to such Relevant German Obligor or its generalpartner, as the case may be, by the Agent of the Agent’s intention to engage afirm of auditors as contemplated in paragraph (b) below; and

 

(ii)                     the date on whichthe Auditors’ Determination (as defined in paragraph (e) below) is available tothe Agent, if such Auditors’ Determination is up to date and in any eventprepared as of a date no earlier than 21 days prior to the date of enforcement.

 

(b)                                     TheAgent shall at all times, acting reasonably and subject to the right of aRelevant German Obligor to itself engage a firm of auditors in accordance withparagraph (d) below, have the right to engage at its sole discretion and at theRelevant German Obligor’s expense a firm of auditors of international standardand reputation which shall proceed to audit the Relevant German Obligor or itsgeneral partner, as the case may be, with a view to investigating to whatextent the Relevant German Obligor’s or its general partner’s, as the case maybe, net assets exceed its registered share capital and to produce an Auditors’Determination on the basis set out in paragraph (e) below.

 

(c)                                      EachRelevant German Obligor or its general partner, as the case may be, shallrender all and any reasonable assistance requested by the Agent for thepurposes of facilitating the audit referred to in paragraph (b) above and shallallow full access to and inspection of its books and any other necessarydocuments.

 

(d)                                     EachRelevant German Obligor at all times shall be entitled itself to engage a firmof auditors (subject to the prior agreement of the Agent, not to beunreasonably withheld, as to the identity of such firm of auditors if suchRelevant German Obligor intends to instruct a different firm of auditors thanthat used most recently by it) to produce the Auditors’ Determination on thebasis set out in paragraph (e) below.

 

(e)                                      Thedetermination by the auditors (the “**Auditors’ Determination**”) of the amountswhich may be claimed against a Relevant German Obligor under the guarantee andindemnity in this Clause 19 pursuant to §§30, 31 of the German LimitedLiability

 

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Companies Act (*GmbH-Gesetz*) in conjunction with §172a ofthe German Commercial Code (*Handelsgesetzbuch*), as the case may be,shall take into account the general accepted accounting principles applicablein Germany (GAAP) as well as the applicable court rulings and will be subjectto the adjustments referred to in paragraph (f) below.  The Agent shall, after it receives anAuditors’ Determination produced at its request, deliver the same to theRelevant German Obligor in issue or its general partner, as the case maybe.  The Relevant German Obligor shall,after it receives an Auditors’ Determination produced at its request, deliverthe same to the Agent. An Auditors’ Determination shall, in the absence ofmanifest error, be binding on the parties hereto.

 

(f)                                        The maximum amount that may be claimed against a Relevant GermanObligor under this Clause 19 shall be the amount specified in an Auditors’Determination on that Relevant German Obligor subject to such Auditors’Determination being up to date and in any event prepared as of a date noearlier than 21 days prior to the date of enforcement **provided that** for thepurposes of the calculation of the amount to be claimed the following balancesheet items shall be adjusted as follows:

 

(i)                        the amount ofany increase of capital (*Stammkapital*) after the date hereof (A)that has been effected without the prior written consent of the Agent (actingon the instructions of the Majority Lenders), (B) that has been effected out ofretained earnings (Kapitalerhöhung aus Gesellschaftsmitteln) or (C) to theextent that is not fully paid up, shall be deducted from the capital (*Stammkapital*);and

 

(ii)                     loans and othercontractual liabilities incurred in violation of the provisions of the FinanceDocuments shall be disregarded.

 

(g)                                     Ifthe 45 day period contemplated by paragraph (a) above has passed and the Agenthas either not received an Auditors’ Determination or has received an Auditors’Determination which, due to lapse of time after its delivery, no longersatisfies the criteria set out in paragraph (f) above, the Agent may proceed tomake a demand against the Relevant German Obligor concerned under the guaranteeand indemnity in this Clause 19. The maximum amount that may be claimed againstsuch Relevant German Obligor in those circumstances will be the amountdetermined by the Agent, in good faith by reference to the most recentfinancial statements delivered pursuant to paragraph (c) of Clause 21.1 (*FinancialStatements*), as the amount that would not lead to the situation thatsuch Relevant German Obligor would have insufficient assets to maintain its orits general partner’s capital (*Stammkapital*). For the purpose ofcalculating such amount, the adjustments referred to in paragraph (f) above willbe made to the most recent financial statements delivered pursuant to paragraph(c) of Clause 21.1 (*Financial Statements*).

 

(h)                                     Ifthe amount payable under the guarantee and indemnity was determined:

 

(i)                        in accordancewith paragraph (g) above; or

 

(ii)                     by reference toan Auditors’ Determination in accordance with paragraph (f) above

 

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and anAuditors’ Determination subsequently delivered to the Agent confirms that theamount available under the guarantee and indemnity at the time of enforcementwas less than the amount recovered by the Agent, the Agent agrees to release(or instruct the Security Trustee to release) an amount of the proceeds equalto the amount by which the recoveries from the Relevant German Obligor exceededthe amount determined to be available.

 

(i)                                         Each Relevant German Obligor who is a Guarantor shall realise in asituation where that Relevant German Obligor does not have (or would not haveas the result of the enforcement of the guarantee in this Clause 19 if Clause19.9 did not apply) sufficient assets to maintain its or its general partner’scapital (*Stammkapital*),to the extent legally permissible and commercially justifiable any and all ofits assets that are shown in the balance sheet with a book value (*Buchwert*)that is significantly lower than the market value of the asset if such asset isnot necessary for such Relevant German Obligor’s business (*betriebsnotwendig*).

 

(j)                                         Notwithstanding the above provisions of this Clause 19.9, theprovisions of paragraphs (a) to (i) (inclusive) of this Clause 19.9 shall notapply:

 

(i)                        during theDebtco Structure Period to MGG in its capacity as a Guarantor to the extentthat any amounts are outstanding from MGG under Intra-Group Loans made by Debtcoto MGG at the time the relevant demand is made against MGG under the guaranteeand indemnity contained in this Clause 19 (*Guarantee and Indemnity*);

 

(ii)                     to the extent anyof the funds borrowed under this Agreement have been onlent to a Relevant GermanObligor who is a Guarantor to the extent that any amounts so on-lent to suchRelevant German Obligor are still outstanding at the time the relevant demandis made against such Relevant German Obligor under the guarantee and indemnitycontained in this Clause 19 (*Guarantee and Indemnity*).

## ** **

## **19.10**               Limitation on US Obligor Guarantee

Notwithstanding anything to the contrary contained herein or in anyother Finance Document, the maximum liability of each US Guarantor under Clause19.1 (*Guaranteeand**Indemnity*) shall in no event exceed an amount equal to thegreatest amount that would not render such US Guarantor’s obligations hereunderand under the other Finance Documents subject to avoidance under Section 548 ofthe Bankruptcy Code of the United States of America (Title 11 of the UnitedStates of America Code) or any equivalent provision of the laws of any state ofthe United States of America or to being set aside, avoided or annulled underany applicable laws of any state of the United States of America relating tofraudulent transfers or fraudulent obligations.

## ** **

## **19.11**               Limitation on French Obligor Guarantee

Notwithstandinganything to the contrary contained herein or in any other Finance Document, theliability of each French Guarantor:

###  

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### 19.11.1                shall not include anyobligation which if incurred would constitute the provision of financialassistance within the meaning of Article 225-216 of the French Code ofCommerce;

###  

### 19.11.2                shall be limited to anamount not exceeding at any time the greater of:

####  

#### (a)                     the equivalent ineuros of the Utilisations (plus any accrued interest commission and feethereon) on-lent to that French Guarantor calculated by the Agent on the dateon which such Utilisation(s) are made; and

####  

#### (b)                    90% of the greaterof:

#####  

##### (i)                       the Net AssetValue of that French Guarantor calculated by reference to the most recentaudited financial statements of that French Guarantor available at the date itbecame a Guarantor; and

#####  

##### (ii)                    the Net AssetValue of that French Guarantor calculated by reference to the most recentaudited financial statements of that French Guarantor available at the date onwhich the relevant demand is made on it pursuant to this Clause 19.

 

For thepurposes of this Clause 19.11, “Net Asset Value” of a French Guarantor meansthe capitaux propres (as defined under the provisions of French accountinglaws, decrees and regulations consistently applied) of that FrenchGuarantor.  A certificate of thestatutory auditors of a French Guarantor as to the Net Asset Value shall beprima facie evidence as to the Net Asset Value of that French Guarantor.

## ** **

## **19.12**               Limitation on Luxembourg Obligor

Notwithstandinganything to the contrary contained herein or in any other Finance Document, theliability of any Luxembourg Obligor shall not include any obligation which ifincurred would constitute unlawful financial assistance or misuse of corporateassets pursuant to the provisions of the amended Luxembourg Companies Act dated10 August 1915.

## ** **

## **19.13**               Third Party Rights of Hedge Counterparties

Any HedgeCounterparty which is not a Party but which is a Finance Party may enjoy thebenefit of and enforce the terms of this Clause 19 (*Guarantee and Indemnity*) inaccordance with the provisions of the Contracts (Rights of Third Parties) Act1999.

 

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**SECTION 8**

** **

**REPRESENTATIONS,UNDERTAKINGS AND EVENTS OF DEFAULT**

# ** **

# **20.**                           REPRESENTATIONS

## ** **

## **20.1**                     Signing Representations of the Company

Subject tomatters specifically identified and disclosed against particularrepresentations contained in the Finance Disclosure Letter, the Company makesthe following representations and warranties to each Finance Party on the dateof this Agreement:

 

(a)                                      therepresentations and warranties set out in Clause 20.4 (*Status*) to Clause 20.10 (*No filing orstamp taxes*) in relation to itself only;

 

(b)                                     therepresentations and warranties set out in Clause 20.24 (*Reports*), Clause 20.25 (*BusinessPlan*) and Clause 20.27 (*Group structure*).

## ** **

## **20.2**                     Closing Representations

Subject tomatters specifically identified and disclosed against particularrepresentations contained in the Finance Disclosure Letter, during the ClosingPeriod, the Closing Representations are deemed to be made by the Obligor’sAgent and each Obligor (by reference to the facts and circumstances thenexisting) to the Finance Parties on each of the following days or dates if suchday or date falls within the Closing Period:

 

(a)                                      thedate of each Utilisation Request and the first day of each Interest Period andthe first day of each Term;

 

(b)                                     theday on which a company becomes (or it is proposed that a company becomes) anAdditional Obligor.

## ** **

## **20.3**                     OtherRepresentations

(a)                                      Subjectto matters specifically identified and disclosed against particularrepresentations contained in the Finance Disclosure Letter, the Obligor’s Agentand each Obligor make the representations and warranties set out in Clause20.12 (*Nomisleading information*) to the Finance Parties on the date on whichthe Information Memorandum is approved by the Obligor’s Agent and (save asdisclosed in writing by the Obligor’s Agent to the Agent after approval of suchInformation Memorandum and prior to a Syndication Date) on each SyndicationDate.

 

(b)                                     Subjectto matters specifically identified and disclosed against particularrepresentations contained in the Finance Disclosure Letter the RepeatingRepresentations are deemed to be made by the Obligor’s Agent and each Obligor(by reference to the facts and circumstances then existing) to the FinanceParties on:

 

(i)                        the date ofeach Utilisation Request, the first day of each Interest Period and the firstday of each Term other than any such day or date falling within the ClosingPeriod; and

 

(ii)                     the day on whicha company becomes (or it is proposed that a company becomes) an AdditionalObligor, other than any such day falling within the Closing Period.

 

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(c)                                      Therepresentations and warranties set out in Clause 20.26 (*Budgets*) shall be deemed tobe made by the Obligor’s Agent and MGG to the Finance Parties on the date eachBudget is delivered to the Agent.

 

(d)                                     Oneach date that the Obligor’s Agent is deemed to make the ClosingRepresentations or the Repeating Representations it shall be deemed to makethose Closing Representations or Repeating Representations (as the case may be)on behalf of itself and also in respect of Newco 2 and the Company.

## ** **

## **20.4**                     Status

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

 

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

 

(c)                                      EachBorrower is acting on its own account when entering into this Agreement anddrawing Loans under this Agreement.

## ** **

## **20.5**                     Bindingobligations

Theobligations expressed to be assumed by it in each Transaction Document to whichit is a party are, subject to the Reservations, legal, valid, binding andenforceable obligations.

## ** **

## **20.6**                     Non-conflict with other obligations

The entry intoand performance by it of, and of the transactions contemplated by, theTransaction Documents to which it is a party do not and will not conflict with:

 

(a)                                      anylaw or regulation applicable to it;

 

(b)                                     itsconstitutional documents and (in the case of MGG) its constitutional documentsand those of any member of the MGG Group; or

 

(c)                                      anyagreement or instrument binding upon it or any member of the Group or any ofits or any member of the Group’s assets, to the extent that such a conflictwould reasonably be expected to have a Material Adverse Effect.

## ** **

## **20.7**                     Power and authority

It has thepower to enter into, perform and deliver, and has taken all necessary action toauthorise its entry into, performance and delivery of, the TransactionDocuments to which it is a party and the transactions contemplated by thoseTransaction Documents. No limit on its powers will be exceeded as a result ofthe borrowings, granting of Security or giving of guarantees by it contemplatedby the Finance Documents to which it is a party.

## ** **

## **20.8**                     Validity and admissibility in evidence

AllAuthorisations required:

 

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

 

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(b)                                     subjectto the Reservations, to make the Transaction Documents to which it is a partyadmissible in evidence in its jurisdiction of incorporation,

 

have beenobtained or effected and are in full force and effect, save for any filings orregistrations required in relation to the Security constituted by any SecurityDocument which filings or registrations will be made promptly after executionof the relevant Security Document and in any event within applicable timelimits.

## ** **

## **20.9**                     Governing law and enforcement

(a)                                      Subjectto the Reservations, the choice of English law as the governing law of theFinance Documents (or, in respect of any Subordination Agreements or SecurityDocuments to which it is a party, the relevant governing laws of suchSubordination Agreements or Security Documents) will be recognised and enforcedin its jurisdiction of incorporation.

 

(b)                                     Subjectto the Reservations, any judgment obtained in England in relation to a FinanceDocument (or, in respect of any Subordination Agreements or Security Documentsto which it is a party, any judgement obtained in the courts which areexpressed to have jurisdiction to hear disputes under such SubordinationAgreements or Security Documents) will be recognised and enforced in itsjurisdiction of incorporation.

## ** **

## **20.10**               Nofiling or stamp taxes

Save to theextent identified in any legal opinion delivered pursuant to Clause 4 (*Conditionsof Utilisation*) or Clause 26 (*Changes to the Obligors*), under the law ofits jurisdiction of incorporation it is not necessary that the FinanceDocuments which have been executed be filed, recorded or enrolled with anycourt or other authority in that jurisdiction or that any stamp, registrationor similar tax be paid on or in relation to such Finance Documents or thetransactions contemplated by such Finance Documents.  Any such requirements identified in any such legal opinions will promptlybe effected or paid either (in respect of the Obligor’s Agent) after the dateof this Agreement or (in respect of an Additional Obligor) after it becomes aParty.

## ** **

## **20.11**               Nodefault

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

 

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

## ** **

## **20.12**               No misleading information

(a)                                      Sofar as it is aware after due and careful enquiry, any material factualinformation provided by it or any of its Subsidiaries (or, in the case of MGG,any of its Holding Companies) (in each case taken as a whole) for the purposesof the Information Memorandum was true and accurate in all material respects asat the date it was provided or as at the date (if any) at which it is stated.

 

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(b)                                     Thefinancial projections contained in the Information Memorandum have beenprepared on the basis of recent historical information and on the basis ofreasonable assumptions at the time of such preparation.

 

(c)                                      Nothinghas occurred or been omitted from the Information Memorandum and no informationhas been given or withheld that results in the material information containedin the Information Memorandum (taken as a whole) being untrue or misleading inany material respect.

 

(d)                                     Sofar as it is aware after reasonable enquiry, all material written information(taken as a whole) (other than the Information Memorandum) supplied by anymember of the Group is true, complete and accurate in all material respects asat the date it was given and is not misleading in any material respect.

## ** **

## **20.13**               Financialstatements

The OriginalFinancial Statements and (in the case of each of Newco 2, MGG and eachBorrower) its most recent audited financial statements delivered to the Agentpursuant to paragraph (a) or (d) of Clause 21.1 (*Financial Statements*):

 

(a)                                      wereprepared in accordance with Relevant GAAP consistently applied; and

 

(b)                                     fairlyrepresent its financial condition and operations (consolidated in the case of(1) MGG, with respect to the Original Financial Statements and (2) Newco 2,with respect to its financial statements delivered to the Agent pursuant toClause 21.1 (*Financial Statements*)) during the relevant financial year.

## ** **

## **20.14**               FinancialYear End

Except aspermitted under Clause 23.31 (*Accounting Reference Date*) the financialyear end of the Newco 2 Group is 31 December.

## ** **

## **20.15**               Paripassu ranking

Its paymentobligations under the Finance Documents rank at least pari passu with theclaims of all its other unsecured and unsubordinated creditors, except forobligations mandatorily preferred by law applying to companies generally.

## ** **

## **20.16**               No proceedings pending or threatened

No litigation,arbitration or administrative proceedings of or before any court, arbitral bodyor agency which would reasonably be expected to have a Material Adverse Effecthave been started or (to the best of its knowledge and belief) threatenedagainst it or any of its Subsidiaries. No labour disputes, which would reasonably be expected to have aMaterial Adverse Effect, have been started or (to the best of its knowledge andbelief) threatened against it or any of its Subsidiaries.

## ** **

## **20.17**               Environmental compliance

It and each ofits Subsidiaries has performed and observed in all material respects allEnvironmental Law, Environmental Permits and all other material covenants,conditions, restrictions or agreements directly or indirectly concerned withany contamination, pollution or waste or the release or discharge of any toxicor hazardous substance in connection with any real property which is or was atany time owned, leased or occupied by it, or any of its 

 

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Subsidiariesor on which it or any of its Subsidiaries has conducted any activity wherefailure to do so would reasonably be expected to have a Material AdverseEffect.

## ** **

## **20.18**               EnvironmentalClaims

NoEnvironmental Claim has been commenced or (to the best of its knowledge andbelief) is threatened against it or any of its Subsidiaries where that claimwould reasonably be expected to have a Material Adverse Effect.

## ** **

## **20.19**               Taxation

(a)                                      Itand each of its Subsidiaries which is a Material Company has duly andpunctually paid and discharged all Taxes imposed upon it or its assets withinthe time period allowed without incurring penalties (save to the extent that(i) payment is being contested in good faith, (ii) it has maintained adequatereserves for those Taxes and (iii) payment can be lawfully withheld or any suchnon-payment or non-discharge would not reasonably be expected to have aMaterial Adverse Effect).

 

(b)                                     Itand each of its Subsidiaries which is a Material Company is not overdue in thefiling of any Tax returns where such late filing would reasonably be expectedto have a Material Adverse Effect.

 

(c)                                      Noclaims are being or are reasonably likely to be asserted against it or any ofits Subsidiaries which is a Material Company with respect to Taxes which wouldreasonably be expected to have a Material Adverse Effect.

## ** **

## **20.20**               Security and Financial Indebtedness

(a)                                      Savefor Permitted Security, no Security exists over all or any of the present orfuture revenues, assets or undertakings of it or any Material Company orObligor.

 

(b)                                     Savefor Permitted Indebtedness, neither it nor any of its Consolidated Subsidiarieshas any Financial Indebtedness.

 

(c)                                      Theexecution of the Finance Documents to which it is a party and the exercise byit of its rights thereunder will not result in the existence or imposition ofnor oblige any Material Company or any Obligor to create any Security (save forPermitted Security) in favour of any person over any of its present or futurerevenues, assets or undertakings.

## ** **

## **20.21**               Securityinterests

(a)                                      Itis, or will be upon execution of the relevant Security Documents on the ClosingDate occurring (if later), the absolute legal and, where applicable, beneficialowner of all the assets over which it purports to create Security pursuant tothe Security Documents and (subject to the Reservations) each Security Documentto which it is a party creates the Security which that Security Documentpurports to create or, if that Security Document purports to evidence Security,accurately evidences Security which has been validly created.

 

(b)                                     Theshares and, if applicable, limited partnership interests charged, mortgaged orpledged by it pursuant to the Security Documents are all fully paid up (and inthe case of limited partnership interests have not been repaid) and not subjectto any option to

 

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purchase or similar rights save that 662/3% of the shares inNewco 2 are subject to the Call Option (as defined in the Business CombinationAgreement).

## ** **

## **20.22**               IntellectualProperty

It is notaware of any adverse circumstance relating to validity, subsistence or use ofany of its or its Subsidiaries’ Intellectual Property which would reasonably beexpected to have a Material Adverse Effect.

## ** **

## **20.23**               Goodtitle to assets

It and each ofits Subsidiaries has good title to or valid leases of or other appropriatelicence, authorisation or consent to use all assets necessary to carry on itsbusiness as presently conducted, the absence of which would reasonably beexpected to have a Material Adverse Effect.

## ** **

## **20.24**               Reports

Having made allreasonable enquiries in the circumstances of the Acquisition and thenegotiation of the Acquisition Documents:

 

(a)                                      itis not aware of any materially adverse inaccuracy as to factual mattersrelating to either the MGG Group or Syngas contained in the Reports; and

 

(b)                                     itis not aware of any facts or matters not stated in the Reports, the omission ofwhich make any statements contained therein (taking the Reports as a whole)misleading in any materially adverse respect.

## ** **

## **20.25**               BusinessPlan

(a)                                      TheBusiness Plan has been prepared using accounting policies, practices andprocedures consistent, in all material respects, with IAS.

 

(b)                                     Afterdue and careful consideration, having made all reasonable efforts to make dueand careful enquiries in connection with the Acquisition (including, withoutlimitation, discussing the Business Plan with relevant managers employed bymembers of the MGG Group), it:

 

(i)                        is not awareof any material inaccuracy as to factual matters relating to the Groupcontained in the Business Plan;

 

(ii)                     does not regardas unreasonable, or to any material extent, unattainable, any of the forecastsor projections set out in the Business Plan;

 

(iii)                  believes that theCost Savings will in all material respects be achieved on or before the fourthanniversary of the Closing Date;

 

(iv)                 believes theassumptions, upon which the forecasts and projections in relation to the Groupcontained in the Business Plan are based, to be fair and reasonable in allmaterial respects at the time made;

 

(v)                    is not aware ofany facts or matters omitted from the Business Plan or the Original FinancialStatements, the omission of which make any statements contained therein (takenas a whole) misleading in any material respect;

 

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(vi)                 has made fulldisclosure of all material facts relating to the Group to all the personsresponsible for the preparing of the Business Plan; and

 

(vii)              believes that thedisposal of sufficient of the shares of the companies identified in theDisposal Plan and/or the assets of such companies to realise the amount of NetDisposal Proceeds assumed in the Business Plan is achievable before the TermDisposal Facility Repayment Date,

** **

**provided that** theabove representations in this Clause 20.25 are given subject to thequalification that projections are based on estimates and assumptions and aresubject to business, economic and competitive uncertainties and contingenciesand that accordingly no assurances can be given or representation made that anyof the assumptions are correct, that projections will be attained or thatforward-looking statements expressed in the projections will correspond toactual results.

## ** **

## **20.26**               Budgets

It:

 

(a)                                      regards(as at the date each Budget is delivered to the Agent) as neither unreasonable,nor to any material extent unattainable, any of the forecasts or projectionsset out in the latest Budget delivered under Clause 21.3 (*Budgets*) or pursuant toSchedule 2 (*ConditionsPrecedent*);

 

(b)                                     believes(having made all reasonable enquiries) the assumptions, upon which theforecasts and projections in relation to the Newco 2 Group contained in thelatest Budget delivered under Clause 21.3 (*Budgets*) or pursuant to Schedule 2 (*ConditionsPrecedent*) are based, to be fair and reasonable; and

 

(c)                                      has,to the best of its knowledge and belief (having made all reasonable efforts tomake due and careful enquiry), made full disclosure of all material factsrelating to the Newco 2 Group to all the persons responsible for the preparingof the latest Budget delivered under Clause 21.3 (*Budgets*) or pursuant toSchedule 2 (*ConditionsPrecedent*),

** **

**provided that** theabove representations in this Clause 20.26 are given subject to thequalification that projections are based on estimates and assumptions and aresubject to business, economic and competitive uncertainties and contingenciesand that accordingly no assurances can be given or representation made that anyof the assumptions are correct, that projections will be attained or thatforward-looking statements expressed in the projections will correspond toactual results.

## ** **

## **20.27**               Groupstructure

The GroupStructure Chart delivered to the Agent pursuant to Clause 4 (*Conditionsof Utilisation*) or any revised group structure chart delivered tothe Agent pursuant to Clause 23.32 (*Revised Group structure*) is true, completeand accurate in all material respects.

## ** **

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## **20.28**               Ownershipof Obligors

From theClosing Date (save as expressly contemplated in the Business CombinationAgreement on the terms and conditions set out in the Business CombinationAgreement):

 

(a)                                      theCompany will directly and beneficially own 100% of the issued shares of Newco2; and

 

(b)                                     Newco2 will directly and beneficially own 100% of the issued shares of MGG (savethat during the Debtco Structure Period Newco 2 will directly and beneficiallyown 100% of the issued shares of Debtco and Debtco will directly andbeneficially own 100% of the shares of MGG and until the contribution of theFamily MGG Shares to Newco 2 in accordance with the BCA becomes effective (asreferred to in paragraph 4(d) of Part I of Schedule 2 (*Conditions Precedent*)) Newco2 will directly and beneficially own 662/3% of the issuedshares of MGG).

## ** **

## **20.29**               Consentsand Approvals

All necessaryconsents, licences, authorisations and approvals to the transactionsconstituted by the Transaction Documents have been obtained and all consents,licences, authorisations and other approvals necessary for the conduct of thebusiness of the Group as a whole have been obtained, their terms and conditionshave been complied with in all material respects and they have not been and, sofar as it is aware, will not be revoked or otherwise terminated, save in eachcase to the extent that the absence of any such consent or filing or variationwould not reasonably be expected to have a Material Adverse Effect.

## ** **

## **20.30**               AcquisitionDocuments

(a)                                      Therehas been no amendment, variation or waiver of the terms of any of theAcquisition Documents save for any amendments, variations or waivers:

 

(i)                        approved inwriting by the Agent (acting on the instructions of the Majority Lenders); or

 

(ii)                     which are of aminor or technical nature or which could not reasonably be considered to beadverse in any material respect to the interests of any of the Finance Parties.

 

(b)                                     TheAcquisition Documents contain all of the terms of the agreement between theInvestors, the members of the Group and the Vendor in relation to theAcquisition (other than agreements made between the Investors inter se).

 

(c)                                      Itis not aware of any event, fact or circumstance which would constitute amaterial breach of warranty or misrepresentation or material breach of contractin respect of an Acquisition Document, or otherwise allow it to make any otherclaim (other than minor claims of a non material nature) against either theVendor or an Affiliate of the Vendor.

## ** **

## **20.31**               Issueof share capital

There are noagreements in force to which any member of the Group is party or corporate resolutionspassed which call for the present or further issue or allotment of, or grant toany person the right (whether conditional or otherwise) to call for the issueor allotment of any

 

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share orpartnership interest (or equivalent) of any member of the MGG Group (includingan option or right of pre-emption or conversion) other than:

 

(a)                                      pursuantto the Singapore Separation Agreement;

 

(b)                                     asexpressly provided in the Shareholders’ Agreement;

 

(c)                                      rightsunder employee share ownership plans in relation to shares in members of theMGG Group (other than MGG);

 

(d)                                     rightsunder shareholders’ or joint venture agreements, or under the constituentdocuments of the relevant entity, held by minority shareholders of members ofthe MGG Group (other than MGG) or by their Affiliates; and

 

(e)                                      theexisting agreement between Neal and Massy Gas Products Ltd. (“**NMG**”),MGG and Messer Trinidad & Tobago Limited (“**MTTL**”) pursuant to which NMGis required to subscribe for 26% of the issued share capital of MTTL.

## ** **

## **20.32**               NoTrading

Save ascontemplated by, or otherwise in connection with, the Transaction Documents andthe transactions contemplated thereby, neither the Company or Newco 2 or Debtcoor any Treasury Borrower has traded or undertaken any commercial activities ofany kind or has any liabilities or obligations (actual or contingent).

## ** **

## **20.33**               Pensions

Each member ofthe Group is in compliance with all applicable laws and contracts relating tothe pension schemes (if any) operated by it or in which it participates, savewhere any failure to comply would not reasonably be expected to have a MaterialAdverse Effect, and (to the extent required by applicable law) each suchpension scheme is fully funded based on reasonable actuarial assumptions andadministered and funded in accordance with applicable law (save as would notreasonably be expected to have a Material Adverse Effect).

## ** **

## **20.34**               ERISA and Multiemployer Plans

(a)                                      Neitherany US Group Member nor any ERISA Affiliate is making or accruing an obligationto make contributions or has within any of the five calendar years immediatelypreceding the date of this Agreement made or accrued an obligation to makecontributions to any Multiemployer Plan to an extent or in a manner which wouldreasonably be expected to have a Material Adverse Effect.

 

(b)                                     EachEmployee Plan is in compliance in form and operation with ERISA and the Codeand all other applicable laws and regulations save where any failure to complywould not reasonably be expected to have a Material Adverse Effect.

 

(c)                                      EachEmployee Plan which is intended to be qualified under Section 401(a) of theCode has been determined by the IRS to be so qualified or is in the process ofbeing submitted to the IRS for approval or will be so submitted during theapplicable remedial amendment period, and, to the knowledge of the Obligor’sAgent, nothing has occurred since the date of such determination that wouldadversely affect such determination where such adverse effect would reasonablybe expected to have a Material Adverse Effect (or, in the case of an EmployeePlan with no determination,

 

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nothing has occurred that would adversely affect such qualificationwhere such adverse effect would reasonably be expected to have a MaterialAdverse Effect).

 

(d)                                     Thefair market value of the assets of each Employee Plan subject to Title IV ofERISA is at least equal to the present value of all accumulated benefitobligations under each such Employee Plan (based on the assumptions used forthe purposes of Statement of Financial Accounting Standards No. 87) as of thedate of the most recent financial statement reflecting such amounts or, if, asof such date, additional contributions are required, the Obligor’s Agent doesnot believe that the making of such additional contribution to the extentnecessary to satisfy legal requirements would reasonably be expected to have aMaterial Adverse Effect.

 

(e)                                      Thereare no actions, suits or claims pending against an Employee Plan (other thanroutine claims for benefits) or, to the knowledge of the Obligor’s Agent, anyUS Group Member or any ERISA Affiliate threatened, which would reasonably beexpected to be asserted successfully against any Employee Plan, as to whichthere is a reasonable possibility of such an assertion and which wouldreasonably be expected either singly or in the aggregate to have a MaterialAdverse Effect.

 

(f)                                        Each US Group Member and any ERISA Affiliate has made all materialcontributions to or under each such Employee Plan required by law within theapplicable time limits prescribed thereby, the terms of such Employee Plan, orany contract or agreement requiring contributions to an Employee Plan savewhere any failure to comply would not reasonably be expected to have a MaterialAdverse Effect.

 

(g)                                     Neitherany US Group Member nor any ERISA Affiliate has ceased operations at a facilityso as to become subject to the provisions of Section 4068(a) of ERISA,withdrawn as a substantial employer so as to become subject to the provisionsof Section 4063 of ERISA or ceased making contributions to any Employee Plansubject to Section 4064(a) of ERISA to which it made contributions, exceptwhere any such ceasing of operations, withdrawal as a substantial employer orceasing to make contributions would not reasonably be expected to have aMaterial Adverse Effect.

 

(h)                                     Neitherany US Group Member nor any ERISA Affiliate has incurred or reasonably expectsto incur any liability to PBGC save for any liability which would notreasonably be expected to have a Material Adverse Effect.

## ** **

## **20.35**               MarginStock

 

(a)                                      NoUS Group Member is engaged principally, or as one of its important activities,in the business of owning or extending credit for the purpose of purchasing orcarrying any Margin Stock.

 

(b)                                     TheFacilities will not be used, directly or indirectly, for any purpose whichmight constitute all or any part of the Facilities a “purpose credit” withinthe meaning of Regulation U or Regulation X.

 

(c)                                      NoUS Group Member or any agent acting on its behalf has taken or will take anyaction which might cause the Finance Documents to violate any regu­lation ofthe Board of Governors of the Federal Reserve System of the United States.

## ** **

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## **20.36**               InvestmentCompanies

No US GroupMember is subject to regulation under the United States Public Utility HoldingCompany Act of 1935 or the United States Investment Company Act of 1940 or anyUnited States federal or state statute or regulation limiting its ability toincur indebtedness.

# ** **

# **21.**                           INFORMATIONUNDERTAKINGS

Theundertakings in this Clause 21 remain in force from the date of this Agreementfor so long as any amount is outstanding under the Finance Documents or any Commitmentis in force.  Save as otherwise providedin the Finance Documents (in particular, but without limitation, pursuant toClause 25.7 (*Disclosure of Information*)) and save for disclosure to theirprofessional advisers, the Lenders shall treat information received pursuant tothis Clause 21 as confidential.

## ** **

## **21.1**                     Financialstatements

The Obligor’sAgent shall supply to the Agent in sufficient copies for all the Lenders:

 

(a)                                      assoon as the same become available, but in any event within 120 days after theend of each of the financial years of Newco 2 which are for the twelve monthsending on 31 December:

 

(i)                        the auditedconsolidated financial statements of Newco 2 for that financial year; and

 

(ii)                     theunconsolidated audited financial statements of each Borrower for that financialyear; and

 

(iii)                  the auditedconsolidated financial statements of MGG for that financial year; and

 

(b)                                     assoon as the same become available, but in any event within 55 days after theend of each quarter (other than the final quarter) of each of the financialyears of Newco 2 (or, in the case of the financial statements for each finalquarter of each of the financial years of Newco 2, within 75 days of the end ofeach such final quarter or within 120 days of the end of the final quarterending 31 December 2001), the consolidated financial statements of Newco 2 forthat financial quarter consisting of a balance sheet and profit and lossstatement and cash flow statement for such financial quarter (and, if anyfinancial quarter of Newco 2 does not end on a Quarter Date, as soon as thesame become available, but in any event within 45 days after each Quarter Date,the consolidated financial statements of Newco 2 for the three months ending onthat Quarter Date consisting of a balance sheet and profit and loss statementand cash flow statement for such three month period); and

 

(c)                                      assoon as the same become available, but in any event within 30 days after theend of each calendar month, commencing with the first full calendar month afterthe Closing Date, the consolidated profit and loss statement of Newco 2 forthat calendar month showing the performance relative to the Budget during suchcalendar month and for the calendar year to date, together with the amount ofCapital Expenditure for that calendar month and the financial liabilities ofthe Newco 2 Group as at the end of such calendar month (such profit and lossstatement to provide as a minimum the

 

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information provided in the monthly management reports as at the dateof this Agreement); and

 

(d)                                     assoon as the same become available, but in any event within 120 days after theend of each calendar year in which the financial year of Newco 2 ending on 31December is for a period of less than twelve months:

 

(i)                        the pro formasummary of the audited consolidated financial statements of Newco 2 for thatcalendar year; and

 

(ii)                     the pro formasummary of the unconsolidated audited financial statements of each Borrower forthat calendar year; and

 

(iii)                  the pro formasummary of the audited consolidated financial statements of MGG for thatcalendar year; and

 

(e)                                      assoon as the same become available, but in any event within 45 days of the endof each financial quarter of MGG ending after 1 January 2001 but on or beforethe end of the financial quarter in which the Closing Date occurs, theconsolidated financial statements of MGG for that financial quarter consistingof a balance sheet and profit and loss statement and cash flow statement forsuch financial quarter.

## ** **

## **21.2**                     Compliance Certificates

(a)                                      TheObligor’s Agent shall supply to the Agent, with each set of financialstatements delivered pursuant to paragraph (a)(i) or (b) or (d)(i) of Clause21.1 (*Financialstatements*), a Compliance Certificate signed by any Prokurist ofNewco 2 setting out (in reasonable detail) computations as to compliance withClause 22 (*Financialcovenants*) and Clause 23.30 (*Guarantor Group and Security Coverage*) andthe Material Companies falling within paragraphs (b) and (c) of the definitionof Material Company as at the date as at which those financial statements weredrawn up and the details listed in paragraphs (i), (ii) and (iii) of thedefinition of Relevant Debt Relief Amount relating to any disposals during theperiod to which such financial statements relate which it wishes to include forthe purposes of paragraphs (a) and (b) of the definition of Relevant DebtRelief Amount.

 

(b)                                     TheObligor’s Agent shall supply to the Agent with each set of financial statementsdelivered pursuant to paragraph (a)(i) or (d)(i) of Clause 21.1 (*Financialstatements*) an Auditor’s Report reporting on the ComplianceCertificate accompanying such financial statements.

## ** **

## **21.3**                     Budgets

(a)                                      TheObligor’s Agent shall, as soon as the same become available, and in any eventno later than 15 days prior to the beginning of each calendar year, deliver tothe Agent in sufficient copies for the Lenders an annual budget (in a formagreed with the Agent) prepared by reference to each calendar month in respectof such calendar year including:

 

(i)                        forecasts ofany projected disposals (including timing and amount of any projecteddisposals) on a consolidated basis of the Newco 2 Group for such calendar year;

 

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(ii)                     projected profitand loss accounts (including projected turnover and operating costs) and keyprojected cashflow items (including capital expenditure, working capital,taxes, interest, acquisitions, disposals and exceptionals) and projected debt,together with the main operating assumptions relating to such projectedfinancial statements, on a monthly basis, for such calendar year on aconsolidated basis for the Newco 2 Group;

 

(iii)                  revisions to theprojections set out in the Business Plan, together with the main operatingassumptions relating thereto, for such calendar year until 31 December 2010,based on the financial condition and performance and prospects of the Newco 2Group at such time;

 

(iv)                 projected CapitalExpenditure to be incurred on a monthly basis for such calendar year on aconsolidated basis for the Newco 2 Group;

 

(v)                    projected EBIT andEBITDA as at the end of each calendar month in such calendar year; and

 

(vi)                 a qualitativeanalysis and commentary from the management on its proposed activities for suchcalendar year.

 

(b)                                     TheObligor’s Agent shall, as soon as the same become available, and in any eventno later than 15 August in each year, deliver to the Agent in sufficient copiesfor the Lenders an update to the annual budget previously delivered to theAgent pursuant to paragraph (a) above in respect of that year.

 

(c)                                      TheObligor’s Agent shall provide the Agent with details of any material changes inthe projections delivered under this Clause 21.3 as soon as reasonablypracticable after it becomes aware of any such change.

## ** **

## **21.4**                     Requirements as to financial statements

(a)                                      Eachset of financial statements delivered by the Obligor’s Agent pursuant to Clause21.1 (*Financialstatements*) shall be certified by a board member of the relevantcompany as fairly presenting in all material respects its financial conditionas at the date as at which those financial statements were drawn up.

 

(b)                                     Subjectto paragraph (d) below, the Obligor’s Agent shall procure that each set of financialstatements of the Newco 2 Group or a Borrower delivered pursuant to Clause 21.1(*Financialstatements*) is prepared using Relevant GAAP, and in the case of theconsolidated financial statements of Newco 2 only, accounting practices andfinancial reference periods consistent with those applied in the preparation ofthe Original Financial Statements unless, in relation to the consolidatedfinancial statements of Newco 2, it notifies the Agent that there has been achange in IAS, or the accounting practices or reference periods, and Newco 2’sauditors deliver to the Agent:

 

(i)                        a descriptionof any change necessary for those financial statements to reflect the IAS,accounting practices and reference periods upon which the Original FinancialStatements were prepared; and

 

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(ii)                     sufficientinformation, in form and substance as may be reasonably required by the Agent,to enable the Lenders to determine whether Clause 22 (*Financial covenants*) hasbeen complied with and make an accurate comparison between the financialposition indicated in those financial statements and the Original FinancialStatements.

 

Any referencein this Agreement to those financial statements shall be construed as areference to those financial statements as adjusted to reflect the basis uponwhich the Original Financial Statements were prepared.

 

(c)                                      Ifthe Obligor’s Agent notifies the Agent of a change in accordance with paragraph(b) above then the Obligor’s Agent and Agent (acting on the Majority Lenders’instructions) shall enter into negotiations in good faith with a view toagreeing:

 

(i)                        whether or notthe change might result in any material alteration in the commercial effect ofany of the terms of this Agreement; and

 

(ii)                     if so, anyamendments to this Agreement which may be necessary to ensure that the changedoes not result in any material alteration in the commercial effect of thoseterms,

 

and if anyamendments are agreed they shall take effect and be binding on each of theParties in accordance with their terms.

 

(d)                                     Ifthe Obligor’s Agent notifies the Agent in writing that it wishes theconsolidated financial statements of Newco 2 and MGG to be delivered underClause 21.1 (*Financial statements*) to be prepared using US GAAP andprovides with such notification a description from Newco 2’s auditors of thedifferences for Newco 2’s and MGG’s consolidated financial statements betweenUS GAAP and IAS as applied to the Original Financial Statements, then theObligor’s Agent and the Agent (acting on the Majority Lenders’ instructions)shall enter into negotiations in good faith with a view to agreeing anyamendments to this Agreement which may be necessary to ensure that if in futurethe consolidated financial statements of Newco 2 were to be permitted to bedelivered pursuant to Clause 21.1 (*Financial statements*) prepared using USGAAP rather than IAS such change would not result in any material alteration tothe commercial effect of the terms of this Agreement.  If any amendments are agreed they shall take effect and bebinding on each of the Parties in accordance with their terms and futureconsolidated financial statements of Newco 2 may be delivered pursuant toClause 21.1 (*Financial statements*) prepared using US GAAP.

 

(e)                                      EachLender acknowledges that it shall not unreasonably withhold or delay itsconsent in relation to any request from the Obligor’s Agent under paragraphs(c) or (d) of this Clause 21.4.

 

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## **21.5**                     Information: miscellaneous

The Obligor’sAgent shall supply to the Agent (in sufficient copies for all the Lenders, ifthe Agent so requests):

 

(a)                                      alldocuments dispatched by the Obligor’s Agent to its shareholders (or any classof them) or its creditors generally pursuant to applicable legal requirementsat the same time as they are dispatched;

 

(b)                                     promptlyupon becoming aware of them, the details of any litigation, arbitration oradministrative proceedings which are current, threatened or pending against anymember of the MGG Group, and which would reasonably be expected to have aMaterial Adverse Effect;

 

(c)                                      promptlynotify the Agent in writing upon becoming aware of any pollution orcontamination of the environment in respect of which any member of the Groupmay incur expenditure in excess of EUR10,000,000 (or its equivalent) to cleanup or remedy together with details of such pollution or contamination; and

 

(d)                                     promptly,such further information regarding the financial condition, business andoperations of any member of the Group as any Finance Party (through the Agent)may reasonably request.

## ** **

## **21.6**                     Notificationof default

Each Obligorshall notify the Agent of any Default (and the steps, if any, being taken toremedy it) promptly upon becoming aware of its occurrence (unless that Obligoris aware that a notification has already been provided by another Obligor).

## ** **

## **21.7**                     ERISA related Information

(a)                                      TheObligor’s Agent shall procure that each US Group Member and each ERISAAffiliate (each a “**Relevant Company**” for the purposes of thisClause 21.7) shall:

 

(i)                        promptly andin any event within thirty days after any Relevant Company knows or has reasonto know that any ERISA Event which would reasonably be expected to have aMaterial Adverse Effect has occurred; and

 

(ii)                     promptly and inany event within ten days after any Relevant Company knows or has reason toknow that a request for a minimum funding waiver under Section 412 of the Codehas been filed with respect to any Title IV Plan or Multiemployer Plan,

 

deliver to theAgent a written statement of the Chief Financial Officer of such RelevantCompany describing such ERISA Event or waiver request and the action, if any,which it proposes to take with respect thereto and a copy of any notice filedwith the PBGC or the IRS pertaining thereto.

 

(b)                                     TheObligor’s Agent shall procure that each Relevant Company shall simultaneouslywith the date that any Relevant Company files a notice of intent to terminateany Title IV Plan, if such termination would require material additionalcontributions in order to be considered a standard termination within themeaning of Section 4041(b) of ERISA, deliver to the Agent a copy of eachnotice.

# ** **

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# **22.**                           FINANCIALCOVENANTS

## ** **

## **22.1**                     Financialdefinitions

In this Clause22:

 

“**CapitalExpenditure**” means any expenditure or obligations in respect ofexpenditure (including any obligation in respect of the capital element of anyFinance Lease) for the acquisition of equipment, fixed assets, real property,intangible assets and other assets of a capital nature, or for the replacementsor substitution therefor or additions or improvements thereto, that in any suchcase have a useful life or more than one year together with the costs incurredin connection therewith but excluding any cash payments in respect ofexpenditure on Permitted Acquisitions and excluding any expenditure orobligations in respect of expenditure in respect of Restructuring Expenses andexcluding any expenditure eliminated on consolidation.  Under this Agreement, Capital Expenditurewill be treated as having been made or incurred at the time it is treated ashaving been incurred under IAS.

 

“**Cash**”means, at any time, cash at bank and credited to an account in the sole name ofa member of the Newco 2 Group.

 

“**CashEquivalent Investments**” means certificates of deposit and debtsecurities which are not convertible into any other form of security, are notissued or guaranteed by any member of the Newco 2 Group and have a maturity oftwelve months or less.

 

“**CurrentAssets**” means the aggregate of inventories of each member of theNewco 2 Group (including advanced payments made), trade accounts receivable ofeach member of the Newco 2 Group and receivables of each member of the Newco 2Group relating to long-term construction contracts but excluding amountsreceivable in respect of Restructuring Expenses and Exceptional Items.

 

“**CurrentLiabilities**” means the aggregate of trade accounts payable by eachmember of the Newco 2 Group and advance payments received by each member of theNewco 2 Group on orders (in each case, falling due within twelve months fromthe date of computation) but excluding liabilities in respect of RestructuringExpenses and Exceptional Items.

 

“**EBITDA**”means, for any period, the consolidated profit from operations of the Newco 2Group for that period and, in respect of any part (the “**Pre-Closing Period**”) of suchperiod which falls prior to the Closing Date, the consolidated profit fromoperations of the MGG Group for that Pre-Closing Period:

 

(a)                                      excluding any Exceptional Items;

 

(b)                                     addingback (in each case only to the extent deducted in calculating consolidatedprofit from operations):

 

(i)                        any amountattributable to amortisation of intangible assets (including goodwill);

 

(ii)                     any amountattributable to depreciation of tangible assets;

 

(iii)                  any amountattributable to Restructuring Expenses (which is not otherwise excluded byvirtue of being an Exceptional Item); and

 

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(iv)                 any amount of expenseincurred that is attributable to financing or refinancing Unconsolidated Debt;

 

(c)                                      addingany cash dividends declared by any person which is not a member of the MGGGroup in favour of a member of the MGG Group during that period; and

 

(d)                                     deducting(to the extent otherwise included) any amounts returned to any member of theMGG Group in respect of monies paid by that member of the MGG Group in relationto Unconsolidated Debt,

** **

**provided that**noamount shall be excluded, deducted or added back more than once.

 

“**ExceptionalItems**” means items which are required (due to their size, nature orincidence) to be disclosed separately in accordance with paragraphs 16 - 18 ofinternational accounting standard 8 of IAS.

 

“**Excess CashFlow**” means, for any period for which it is being calculated,Operating Cash Flow for that period less Total Debt Service for that period butadding back (to the extent included in Total Debt Service) mandatoryprepayments made during that period pursuant to Clause 9.4 (*Excess CashFlow*) and Clause 9.5 (*Asset Disposals*).

 

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

 

“**Net CashInterest Payable**” means, in respect of any period and without doublecounting, the aggregate amount of the interest (including the interest elementof any Finance Lease), commission, fees, discounts and other finance paymentspayable by the Newco 2 Group in respect of any Indebtedness for Borrowed Money(other than arising under permitted Intra-Group Loans) which have accruedduring that period,

 

(a)                                      *adding* any commission, fees, discounts and other finance payments expensedby the Newco 2 Group under any interest rate hedging arrangement duringthat period;

 

(b)                                     *deducting* any commission, fees, discounts and other finance paymentsreceivable by the Newco 2 Group during that period under any interest ratehedging instrument permitted by this Agreement;

 

(c)                                      *deducting* any interest receivable by the Newco 2 Group on any deposit or bankaccount during that period;

 

(d)                                     *excluding*any capitalised interest in respect of theMezzanine Outstandings, any Direct Mezzanine Refinancing Facility and anyRefinancing Notes (for the avoidance of doubt, any interest which has beencapitalised in respect of the Mezzanine Outstandings which becomes payable uponany refinancing in full of the Mezzanine Facility permitted hereunder shall beexcluded pursuant to this paragraph (d));

 

(e)                                      *excluding* (for the avoidance of doubt) any arrangement, underwriting or otherfront end fees payable in respect of (or any prepayment fees in respect of)facilities providing Indebtedness for Borrowed Money; and

 

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(f)                                        *excluding* (for the avoidance of doubt) capitalised borrowing costs relatingto the construction of fixed assets **provided that** such costs have been incurredas Capital Expenditure.

 

“**Operating****Cash Flow**”means, in respect of any period, EBITDA for such period after:

 

(a)                                      addingback:

 

(i)                        any decreasein the amount of Working Capital at the end of such a period compared againstthe Working Capital at the start of such a period;

 

(ii)                     any cash receiptin respect of any Exceptional Item (other than in respect of any disposal);

 

(iii)                  any increase in theamount of Working Capital attributed to any increase of Current Assets in thefirst two Financial Quarters ending after the Closing Date related to thediscontinuance of the Existing Factoring Programme;

 

(iv)                 the book value of anydisposal of assets in the ordinary course of business during that period;

 

(v)                    any increases inlong term provisions;

 

(vi)                 any indemnitiesreceived in cash by any member of the MGG Group in relation to UnconsolidatedDebt (or, to the extent otherwise included, paid directly to the creditor inrespect thereof); and

 

(vii)              receipts by any memberof the Newco 2 Group in respect of Taxes; and

 

(b)                                     deducting:

 

(i)                        (to the extentotherwise included) any amount of Capital Expenditure actually paid by anymember of the Newco 2 Group during that period (other than Capital Expenditureusing the Additional Basket) pursuant to paragraph (c)(iii) of Clause 22.3 (*CapitalExpenditure*);

 

(ii)                     any increase inthe amount of Working Capital at the end of such a period compared against theWorking Capital at the start of such a period;

 

(iii)                  (to the extentotherwise included) any amount actually paid in respect of taxes on the profitsof any member of the Newco 2 Group;

 

(iv)                 any cash payment inrespect of any Exceptional Item;

 

(v)                    (to the extent notdeducted under paragraph (b) (iv) above) any cash payment in respect ofRestructuring Expenses;

 

(vi)                 any cash investmentin a person which is not a member of the MGG Group other than in respect ofUnconsolidated Debt;

 

(vii)              (to the extent otherwiseincluded) any decrease in long term provisions; and

 

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(viii)           the amount of any dividendsactually paid in cash by any member of the MGG Group to any person who is not amember of the MGG Group and any cash dividends declared by any member of theMGG Group to any person which is not a member of the MGG Group,

 

and no amountshall be included or excluded more than once save that (except for the purposesof calculating Excess Cash Flow) any cash payment made in 2001 or 2002 inrespect of any Restructuring Expenses which is otherwise deducted underparagraph (b) above shall be added back.

 

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

 

“**RelevantPeriod**” means:

 

(a)                                      theperiod beginning on 1 January 2001 and ending on 30 September 2001; and

 

(b)                                     eachperiod of twelve months ending on the last day of each Quarter Date fallingafter 30 September 2001.

 

“**Total Debt**”means, at any time, the aggregate of the Indebtedness for Borrowed Money(without double counting) of the Newco 2 Group at that time expressed in euros(and if any such Indebtedness for Borrowed Money is not denominated in eurosthen the amount of such Indebtedness for Borrowed Money shall be converted intoeuros using the same principles as those used in establishing a eurodenominated figure for operating profit of the Newco 2 Group for the applicableperiod ending on the date at which the Total Debt figure is being calculated,with the exception that for Indebtedness for Borrowed Money covered under anycurrency hedging arrangement entered into by the Newco 2 Group the exchangerate to be used shall be the effective rate under that currency hedgingarrangement) excluding:

 

(a)                                      anyIndebtedness for Borrowed Money arising under any permitted Intra-Group Loan;

 

(b)                                     anyIndebtedness for Borrowed Money owed by Newco 2 under any loan from a HoldingCompany of Newco 2 to Newco 2;

 

(c)                                      anyIndebtedness for Borrowed Money to the extent that such Indebtedness forBorrowed Money is supported by any Letter of Credit or Bank Guarantee issuedunder this Agreement; and

 

(d)                                     anyIndebtedness for Borrowed Money to the extent that the creditor of suchIndebtedness for Borrowed Money has been (and continues at that time to be)provided with first priority Security over a deposit in a bank account securingsuch Indebtedness for Borrowed Money,

 

but addingUncovered Non-Indemnified Unconsolidated Debt at that time.

 

“**Total DebtService**” means, in respect of any period and without doublecounting, the aggregate of:

 

(a)                                      NetCash Interest Payable for that period; and

 

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(b)                                     theaggregate of scheduled repayments and mandatory prepayments of Total Debtfalling due during that period (but excluding:

 

(i)                        any amountsfalling due under either Revolving Facility other than any payments required tobe made in permanent reduction of either Revolving Facility;

 

(ii)                     any prepaymentsrequired to be made pursuant to paragraph (a) of Clause 9.5 (*AssetDisposals*)); and

 

(iii)                  any mandatoryrepayments of Existing Indebtedness falling due as a result of any provisionscontained in the relevant agreement pursuant to which such ExistingIndebtedness was provided relating to the change of control of any member ofthe Newco 2 Group as a result of the MGG Acquisition or otherwise triggered bythe MGG Acquisition or the entering into of the Finance Documents.

 

For theavoidance of doubt, “**scheduled repayments**” are repayments dueunder the relevant agreement as reduced from time to time (in accordance withthe provisions of that agreement) as a consequence of any prepayment.

 

“**TotalSenior Debt**” means, at any time (without double counting), theaggregate of the Indebtedness for Borrowed Money of the MGG Group at such timeexpressed in euros (and if any such Indebtedness for Borrowed Money is notdenominated in euros then the amount of such Indebtedness for Borrowed Moneyshall be converted into euros using the same principles as those used inestablishing a euro denominated figure for operating profit of the Newco 2Group for the applicable period ending on the date at which the Total SeniorDebt figure is being calculated, with the exception that for Indebtedness forBorrowed Money covered under any currency hedging arrangement entered into bythe Newco 2 Group the exchange rate to be used shall be the effective rateunder that currency hedging arrangement):

 

(a)                                      excludingany Indebtedness for Borrowed Money arising under any permitted Intra-GroupLoan made between members of the MGG Group;

 

(b)                                     excludingany Indebtedness for Borrowed Money to the extent that such Indebtedness forBorrowed Money is supported by any Letter of Credit or Bank Guarantee issuedunder this Agreement;

 

(c)                                      excludingany Indebtedness for Borrowed Money to the extent that the creditor of suchIndebtedness for Borrowed Money has been (and continues at that time to be)provided with first priority Security over a deposit in a bank account securingsuch Indebtedness for Borrowed Money;

 

(d)                                     less(to the extent otherwise included) any Indebtedness for Borrowed Moneyoutstanding under the Mezzanine Facility Agreement or the Direct MezzanineRefinancing Facility at such time;

 

(e)                                      less(to the extent otherwise included) any Indebtedness for Borrowed Money owing byMGG or, as the case may be, Debtco in respect of any High Yield Proceeds Loan,any Exchange Notes Loan and in respect of any Newco 2 Loan;

 

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(f)                                        less (to the extent otherwise included) any Indebtedness forBorrowed Money (not falling within paragraphs (b) or (c) above) which issubordinated to the Facilities on terms acceptable to the Majority Lenders; and

 

(g)                                     plusUncovered Non-Indemnified Unconsolidated Debt at that time.

 

“**UncoveredNon-Indemnified Unconsolidated Debt**” at any time means the amount ofRevolving Facility II which is not at such time utilised less an amount (ifany) certified in the then latest Compliance Certificate by which TotalNon-Indemnified Unconsolidated Debt has been permanently reduced (by reason ofthe expiry of a guarantee or indemnity given by a member of the MGG Group whichis not to be renewed or as a result of the disposal of the MGG Group’s interestin a Joint Venture or Unconsolidated Subsidiary of MGG or payment of a sumunder such a guarantee or indemnity by a member of the MGG Group or otherwise)other than by reason of a payment in respect of any Non-IndemnifiedUnconsolidated Debt from the proceeds of a Revolving Facility II Loan or undera Letter of Credit or Bank Guarantee issued under Revolving Facility II andwhich such reduction has not been used to enable a Utilisation under RevolvingFacility II to be used for general working capital requirements of the MGGGroup pursuant to the provisions to paragraph (c) of Clause 3.1 (*Purpose*).

 

“**WorkingCapital**” means at any time Current Assets less Current Liabilitiesat that time.

## ** **

## **22.2**                     Financialcondition

The Obligor’sAgent shall ensure that:

 

(a)                                      *EBITDAto Net Cash Interest Payable:*The ratio of EBITDAfor the Relevant Period ending on each Quarter Date specified in column 1 belowto Net Cash Interest Payable for each Relevant Period ended on such QuarterDate shall not be less than the ratio set out in column 2 below opposite suchQuarter Date.

 
| **Column  1  Quarter Date**                    |   | **Column 2  EBITDA: Net Cash Interest Payable** |   |
|------------------------------------------------|--------|-------------------------------------------------|--------|
| 31 December 2001                               |   | 2.15:1.0                                        |   |
| 31 March 2002                                  |   | 2.15:1.0                                        |   |
| 30 June 2002                                   |   | 2.25:1.0                                        |   |
| 30 September 2002                              |   | 2.35:1.0                                        |   |
| 31 December 2002                               |   | 2.50:1.0                                        |   |
| 31 March 2003                                  |   | 2.60:1.0                                        |   |
| 30 June 2003                                   |   | 2.60:1.0                                        |   |
| 30 September 2003                              |   | 2.70:1.0                                        |   |
| 31 December 2003                               |   | 2.75:1.0                                        |   |
| 31 March 2004                                  |   | 2.85:1.0                                        |   |
| 30 June 2004                                   |   | 3.00:1.0                                        |   |
| 30 September 2004                              |   | 3.05:1.0                                        |   |
| 31 December 2004                               |   | 3.10:1.0                                        |   |
| 31 March 2005                                  |   | 3.25:1.0                                        |   |
| 30 June 2005                                   |   | 3.35:1.0                                        |   |
| 30 September 2005                              |   | 3.50:1.0                                        |   |
| 31 December 2005                               |   | 3.60:1.0                                        |   |
| 31 March 2006 and each Quarter Date thereafter |   | 3.75:1.0                                        |   |

 

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(b)                                      *TotalSenior Debt to EBITDA:*The ratio of Total SeniorDebt on each of the Quarter Dates specified in column 1 below to EBITDA for theRelevant Period ending on such Quarter Date shall not be more than the ratioset out in column 2 below corresponding to that Quarter Date. 

 
| **Column  1  Quarter Date**                    |   | **Column 2   Total Senior Debt : EBITDA** |   |
|------------------------------------------------|--------|-------------------------------------------|--------|
| 31 December 2001                               |   | 4.00:1.0                                  |   |
| 31 March 2002                                  |   | 3.90:1.0                                  |   |
| 30 June 2002                                   |   | 3.80:1.0                                  |   |
| 30 September 2002                              |   | 3.50:1.0                                  |   |
| 31 December 2002                               |   | 3.00:1.0                                  |   |
| 31 March 2003                                  |   | 2.85:1.0                                  |   |
| 30 June 2003                                   |   | 2.75:1.0                                  |   |
| 30 September 2003                              |   | 2.70:1.0                                  |   |
| 31 December 2003                               |   | 2.55:1.0                                  |   |
| 31 March 2004                                  |   | 2.45:1.0                                  |   |
| 30 June 2004                                   |   | 2.30:1.0                                  |   |
| 30 September 2004                              |   | 2.20:1.0                                  |   |
| 31 December 2004                               |   | 2.10:1.0                                  |   |
| 31 March 2005                                  |   | 2.00:1.0                                  |   |
| 30 June 2005                                   |   | 1.90:1.0                                  |   |
| 30 September 2005                              |   | 1.80:1.0                                  |   |
| 31 December 2005                               |   | 1.70:1.0                                  |   |
| 31 March 2006 and each Quarter Date thereafter |   | 1.50:1.0                                  |   |

 

(c)                                      *CashFlow to Total Debt Service:*The ratio of OperatingCash Flow to Total Debt Service for each Relevant Period ended on each QuarterDate specified in column 1 below shall not be less than the ratio set out incolumn 2 below opposite such Quarter Date.

 
| **Column  1  Quarter Date**                    |   | **Column 2  Operating Cash Flow: Total Debt Service** |   |
|------------------------------------------------|--------|-------------------------------------------------------|--------|
| 30 June 2002                                   |   | 1.00:1.0                                              |   |
| 30 September 2002                              |   | 1.00:1.0                                              |   |
| 31 December 2002                               |   | 1.00:1.0                                              |   |
| 31 March 2003                                  |   | 1.00:1.0                                              |   |
| 30 June 2003                                   |   | 1.00:1.0                                              |   |
| 30 September 2003                              |   | 1.05:1.0                                              |   |
| 31 December 2003                               |   | 1.05:1.0                                              |   |
| 31 March 2004 and each Quarter Date thereafter |   | 1.10:1.0                                              |   |

 

(d)                                     *TotalDebt to EBITDA:*The ratio of Total Debt on each ofthe Quarter Dates specified in column 1 below to EBITDA for the Relevant Periodending on such Quarter Date shall not be more than the ratio set out in column2 below corresponding to that Quarter Date.

 

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| **Column  1  Quarter Date**                            |   | **Column 2  Total Debt: EBITDA** |   |
|--------------------------------------------------------|--------|----------------------------------|--------|
| 31 December 2001                                       |   | 5.25:1.0                         |   |
| 31 March 2002                                          |   | 5.15:1.0                         |   |
| 30 June 2002                                           |   | 5.00:1.0                         |   |
| 30 September 2002                                      |   | 4.70:1.0                         |   |
| 31 December 2002                                       |   | 4.10:1.0                         |   |
| 31 March 2003                                          |   | 3.90:1.0                         |   |
| 30 June 2003                                           |   | 3.85:1.0                         |   |
| 30 September 2003                                      |   | 3.75:1.0                         |   |
| 31 December 2003                                       |   | 3.60:1.0                         |   |
| 31 March 2004                                          |   | 3.50:1.0                         |   |
| 30 June 2004                                           |   | 3.35:1.0                         |   |
| 30 September 2004                                      |   | 3.25:1.0                         |   |
| 31 December 2004                                       |   | 3.10:1.0                         |   |
| 31 March 2005                                          |   | 3.00:1.0                         |   |
| 30 June 2005                                           |   | 2.90:1.0                         |   |
| 30 September 2005                                      |   | 2.80:1.0                         |   |
| 31 December 2005                                       |   | 2.70:1.0                         |   |
| 31 March 2006 and each Quarter Date ending  thereafter |   | 2.50:1.0                         |   |

 

## **22.3**                     CapitalExpenditure

(a)                                      TheObligor’s Agent shall ensure that the Newco 2 Group (and, to the extent thatany such period occurs prior to the Closing Date, the Newco 2 Group and the MGGGroup combined) shall not incur Capital Expenditure in any Financial Quarterspecified in Column 1 below in excess of the amount set out in Column 2 belowas applicable for such Financial Quarter:

 
| **Column 1   Financial Quarter Ending** |   | **Column  2   Maximum Capital   Expenditure (euros)** |   |
|-----------------------------------------|--------|-------------------------------------------------------|--------|
|                                    |   |                                                  |   |
| 31 December 2001                        |   | 39,800,000                                            |   |
| 31 March 2002                           |   | 54,200,000                                            |   |
| 30 June 2002                            |   | 51,100,000                                            |   |
| 30 September 2002                       |   | 49,600,000                                            |   |
| 31 December 2002                        |   | 51,300,000                                            |   |

 

providedalways that the Obligor’s Agent shall ensure that the Newco 2 Group (including,prior to the Closing Date, the MGG Group) shall not incur Capital Expenditurein the calendar year ending 31 December 2001 or the calendar year ending 31December 2002 in excess of the amount specified in Column 2 of paragraph (b)below applicable to such calendar year.

 

(b)                                     TheObligor’s Agent shall ensure that the Newco 2 Group shall not incur CapitalExpenditure in any calendar year specified in Column 1 below in excess of theamount set out in Column 2 below as applicable for such calendar year:

 

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| **Column 1  Calendar Year Ending** |   | **Column  2  Maximum Capital  Expenditure (euros)** |   |
|------------------------------------|--------|-----------------------------------------------------|--------|
|                               |   |                                                |   |
| 31 December 2001                   |   | 179,000,000                                         |   |
| 31 December 2002                   |   | 179,000,000                                         |   |
| 31 December 2003                   |   | 180,000,000                                         |   |
| 31 December 2004                   |   | 187,600,000                                         |   |
| 31 December 2005                   |   | 190,000,000                                         |   |
| 31 December 2006                   |   | 200,000,000                                         |   |
| 31 December 2007                   |   | 200,000,000                                         |   |

 

(c)                                      Notwithstandingparagraphs (a) and (b) above:

 

(i)                        to the extentthat in any Financial Quarter ending in 2001 or in any Financial Quarter endingin 2002 the amount spent in making Capital Expenditure on assets is less thanthe maximum expenditure limit for such Financial Quarter, an amount equal to100% of the amount of such shortfall (the “**Relevant FQ Amount**”) may be carried forwardto the following Financial Quarter in that calendar year only and added to themaximum expenditure limit specified in Column 2 of paragraph (a) above inrespect of such following Financial Quarter but provided that if such RelevantFQ Amount is not spent within such following Financial Quarter it shall ceaseto be available.  For the purposes ofdetermining whether the Relevant FQ Amount has been spent in such followingFinancial Quarter, it will be presumed that such Relevant FQ Amount is spentbefore all of the other Capital Expenditure permitted by paragraph (a) above tobe spent in such following Financial Quarter has been spent;

 

(ii)                     to the extentthat in any calendar year the amount spent in making Capital Expenditure onassets is less than the maximum expenditure limit for such period, an amountequal to 50% of the amount of such shortfall (the “**Relevant Amount**”) may becarried forward to the following calendar year only and added to the maximumexpenditure limit specified in Column 2 of paragraph (b) above in respect ofsuch following calendar year (and in respect of any Relevant Amount carriedforward from 2001 to 2002, such Relevant Amount shall be added so that themaximum capital expenditure permitted in each Financial Quarter in 2002 isincreased pro rata) but provided further that if such Relevant Amount is notspent within such following calendar year it shall cease to be available.  For the purposes of determining whether theRelevant Amount has been spent in such following calendar year, it will bepresumed that such Relevant Amount is spent before all of the other CapitalExpenditure permitted by paragraph (b) above (or, in the case of any RelevantAmount carried forward from 2001 to 2002, paragraph (a) above) to be spent insuch following calendar year has been spent; and

 

(iii)                  an amount of theAdditional Basket may be added to the maximum Capital Expenditure amountpermitted in respect of any calendar year commencing after 31 December 2000,

 

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**provided that** theamount of such permitted maximum Capital Expenditure for any calendar yearspecified in Column 1 of paragraph (b) above shall not in any event exceed 150%of the maximum amount which would be permitted to be incurred without anyadditional amounts being added to such maximum amount under this paragraph (c).

## ** **

## **22.4**                     Financialtesting

The financialcovenants set out in Clause 22.2 (*Financial condition*) and the requirementsof Clause 22.3 (*Capital Expenditure*) shall be tested by reference to eachCompliance Certificate (and the accompanying financial statements) andAuditor’s Report delivered pursuant to Clause 21.2 (*Compliance Certificates*).

## ** **

## **22.5**                     Adjustments

Notwithstandingany other provision of this Agreement, for the purpose of calculating the ratioof Total Senior Debt to EBITDA and the ratio of Total Debt to EBITDA inrelation to the Relevant Period ending 30 September 2001, EBITDA shall be anamount equal to EBITDA for the period of 9 months ending on 30 September 2001multiplied by four and divided by three.

# ** **

# **23.**                           GENERALUNDERTAKINGS

Theundertakings in this Clause 23 remain in force from the date of this Agreementfor so long as any amount is outstanding under the Finance Documents or anyCommitment is in force.

## ** **

## **23.1**                     Authorisations

(a)                                      TheObligor’s Agent and each Obligor shall promptly (and the Obligor’s Agent shallprocure that Newco 2 shall promptly):

 

(i)                        obtain, complywith and do all that is necessary to maintain in full force and effect; and

 

(ii)                     supply certifiedcopies to the Agent of,

 

anyAuthorisation required under any law or regulation of its jurisdiction ofincorporation to enable it to perform its obligations under the FinanceDocuments and, subject to the Reservations, to ensure the legality, validity,enforceability or admissibility in evidence in its jurisdiction ofincorporation of any Finance Document.

 

(b)                                     EachObligor shall (and the Obligor’s Agent shall ensure that each Material Companyshall):

 

(i)                        ensure that ithas the right and is duly qualified to conduct its business as it is conductedfrom time to time in all applicable jurisdictions;

 

(ii)                     obtain, complywith in all material respects and do all that is necessary to maintain in fullforce and effect any Authorisation which is necessary for the conduct of itsbusiness or the business of the Newco 2 Group as a whole; and

 

(iii)                  upon the Agent’swritten request supply the Agent with copies of any such Authorisations.

## ** **

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## **23.2**                     Compliancewith laws

The Obligor’sAgent and each Obligor shall (and the Obligor’s Agent shall procure that Newco 2shall) comply in all respects with all laws to which it may be subject, iffailure so to comply would materially impair its ability to perform itsobligations under the Finance Documents.

## ** **

## **23.3**                     Negativepledge

(a)                                      NoObligor shall (and the Obligor’s Agent shall ensure that no Material Companywill) create or permit to subsist any Security over any of its assets.

 

(b)                                     NoObligor shall (and the Obligor’s Agent shall ensure that no Material Companywill):

 

(i)                        sell, transferor otherwise dispose of any of its assets on terms whereby they are or may beleased to or re-acquired by any other member of the Group (other than, for theavoidance of doubt, any such disposal and consequential lease between membersof the Group);

 

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

 

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

 

(iv)                 enter into any otherpreferential arrangement having a similar effect,

 

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

 

(c)                                      Paragraphs(a) and (b) above do not apply to Permitted Security.

 

(d)                                     TheObligor’s Agent shall procure that Newco 2 shall not create or permit tosubsist any Security over any of its assets or any Quasi Security in respect ofany of its assets other than:

 

(i)                        under theSecurity Documents;

 

(ii)                     under anyPermitted High Yield Security;

 

(iii)                  under any PermittedExchange Notes Security; and

 

(iv)                 under any PermittedSecurity falling within paragraphs (c)(i), (j) or (l) of the definition ofPermitted Security.

 

(e)                                      NoObligor shall (and the Obligor’s Agent shall ensure that no member of the Groupwill) create or permit to subsist any Permitted Security falling withinparagraph (m) or (n) of the definition of Permitted Security in Clause 1.1 (*Definitions*)over any of its assets where such assets are specifically secured under anySecurity Document.

## ** **

## **23.4**                     Loansand Guarantees

No Obligorshall (and the Obligor’s Agent shall ensure that no member of the Newco 2 Groupwill) make any loans, grant any credit or give any guarantee or indemnity(except as required 

 

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by the FinanceDocuments) to or for the benefit of any person or otherwise voluntarily assumeany liability, whether actual or contingent, in respect of any obligation ofany other person other than Permitted Loans and Guarantees.

## ** **

## **23.5**                     FinancialIndebtedness

(a)                                      NoObligor shall (and the Obligor’s Agent shall ensure that no member of the Newco2 Group will) incur, create or permit to subsist or have outstanding anyFinancial Indebtedness or enter into any agreement or arrangement whereby it isentitled to incur, create or permit to subsist any Financial Indebtedness otherthan, in either case, Permitted Indebtedness.

 

(b)                                     TheObligor’s Agent shall ensure that (without double counting) the aggregate ofTotal Debt (as defined in Clause 22 (*Financial Covenants*)) shall at no timeexceed EUR2,250,000,000 (or its equivalent in other currencies, using theexchange rate quoted in the Financial Times as at the date hereof).

## ** **

## **23.6**                     Acquisitions

Other than theAcquisition or Permitted Acquisitions no Obligor shall (and the Obligor’s Agentshall ensure that no member of the Group will):

 

(a)                                      purchase,subscribe for or otherwise acquire any shares (or other securities or anyinterest therein) in, or incorporate, any other company or agree to do any ofthe foregoing; or

 

(b)                                     purchaseor otherwise acquire any assets (other than in the ordinary course of businessor pursuant to any Permitted Capital Expenditure) or (without  limitation to any of the foregoing) acquireany business or interest therein or agree to do so.

## ** **

## **23.7**                     Joint Ventures and Non Wholly-Owned Subsidiaries

(a)                                      TheObligor’s Agent shall ensure that the aggregate amount of:

 

(i)                        outstandingloans permitted pursuant to paragraphs (b)(iii) and (d) of the definition ofPermitted Loans and Guarantees;

 

(ii)                     the aggregateconsideration (both cash and non-cash) paid for acquisitions permitted pursuantto paragraph (e) of the definition of Permitted Acquisitions in relation toacquisitions of any shares or investments in a Non Wholly-Owned Subsidiary thatis not an Obligor;

 

(iii)                  the aggregateconsideration (both cash and non-cash) paid for acquisitions permitted pursuantto paragraph (f) of the definition of Permitted Acquisitions;

 

(iv)                 outstanding guaranteesand indemnities permitted pursuant to paragraphs (i)     of the definition of Permitted Loans and Guarantees; and

 

(v)                    outstandingguarantees and indemnities from MGG or Debtco or a wholly-owned Subsidiary ofMGG or Debtco to a Non Wholly-Owned Subsidiary that is not an Obligor permittedpursuant to paragraph (j) of the definition of Permitted Loans and Guarantees,

 

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shall not atany time (the “**Relevant Time**”) exceed EUR100,000,000 (or its equivalent inother currencies).

 

(b)                                     Saveas provided in paragraph (c) below, the following shall not count towards thepermitted euro amounts specified in paragraph (a) of this Clause:

 

(i)                        loans to NonWholly-Owned Subsidiaries to the extent that they are used to repay ExistingIndebtedness or guarantees of such Existing Indebtedness;

 

(ii)                     equityinvestments in Non Wholly-Owned Subsidiaries or MGG Joint Ventures if as aconsequence of making such equity investments such entities become wholly-ownedSubsidiaries of MGG;

 

(iii)                  any IndemnifiedUnconsolidated Debt;

 

(iv)                 loans existing on theClosing Date to Non Wholly-Owned Subsidiaries, MGG Joint Ventures andUnconsolidated Subsidiaries;

 

(v)                    guarantees andindemnities existing on the Closing Date in respect of indebtedness of NonWholly-Owned Subsidiaries, MGG Joint Ventures and Unconsolidated Subsidiaries;

 

(vi)                 loans permittedpursuant to paragraph (g) of the definition of Permitted Loans and Guarantees;

 

(vii)              any loans to NonWholly-Owned Subsidiaries, MGG Joint Ventures and Unconsolidated Subsidiariesto the extent they are supported by any Letter of Credit or Bank Guaranteeissued under Revolving Facility II; and

 

(viii)           any guarantee given by MGGguaranteeing indebtedness owing by any borrower under a Treasury Borrower LoanAgreement.

 

(c)                                      Anyequity investments of the type referred to in paragraph (b)(ii) above shall,whilst the entities into which they are contributed are not wholly-ownedSubsidiaries, count towards the relevant euro amount specified in paragraph (a)above provided that:

 

(i)                        upon all ofthe shares of any such entity which are held by members of the MGG Group beingdisposed of to non-members of the MGG Group such equity investments whichcounted towards such euro amount shall cease to count towards such euro amount;and

 

(ii)                     (subject toparagraph (i) of this paragraph (c)) if any such entity becomes a wholly-ownedSubsidiary of MGG, then at the election of the Obligor’s Agent at the time suchentity becomes a wholly-owned Subsidiary of MGG any such equity investments mayremain allocated against the relevant euro amount specified in paragraph (a)above or be treated as being an amount funded out of the Additional Basket atthat time or count towards the relevant euro amount specified in paragraph (k)of the definition of Permitted Acquisitions (in relation to the year in whichthe relevant expenditure was made) or any combination thereof, but unless suchelection is made by the Obligor’s Agent such equity

 

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investments shall be deemed to remain counting towards the relevanteuro amount specified in paragraph (k) of the definition of PermittedAcquisitions.

## ** **

## **23.8**                     JointVentures

No Obligorshall, and the Obligor’s Agent shall procure that no member of the Group shall,enter into or acquire or subscribe (or agree to enter into or acquire orsubscribe) for any shares, stocks, securities or other interest in or transferof any assets to or lend to or guarantee or give security for the obligations ofany Joint Ventures, Non Wholly-Owned Subsidiaries that are not Guarantors orUnconsolidated Subsidiaries of Newco 2 save for Permitted Acquisitions orPermitted Loans and Guarantees.

## ** **

## **23.9**                     Dividends and distributions

The Obligor’sAgent shall ensure that no member of the MGG Group will pay, make or declareany dividend, return on capital, repayment of capital contributions or otherdistribution (whether in cash or in kind) or make any distribution of assets orother payment whatsoever in respect of share capital whether directly orindirectly, save for Permitted Distributions.

## ** **

## **23.10**               SubordinatedDebt

(a)                                      TheObligor’s Agent shall ensure that no member of the MGG Group will pay anyinterest or return on principal or repayment of principal or other distribution(in cash or in kind) or make any distribution of assets or other paymentwhatsoever in respect of any indebtedness:

 

(i)                        in respect ofany High Yield Proceeds Loan, save as permitted under the High Yield ProceedsLoan Agreement relating thereto and the High Yield Subordination Agreementrelating thereto;

 

(ii)                     under theMezzanine Facility Agreement or the Direct Mezzanine Refinancing Facility, saveas permitted under the terms of the Intercreditor Deed applicable thereto;

 

(iii)                  in respect of anyNewco 2 Loan, save as permitted under the Newco 2 Loan Agreement and the Newco2 Subordination Agreement relating thereto and save as any such payment is anMGG Permitted Distribution or a Debtco Permitted Distribution (as the case maybe);

 

(iv)                 in respect of anyExchange Notes Loan, save as permitted under the Exchange Notes Loan Agreementrelating thereto and Exchange Notes Subordination Agreement relating thereto.

 

(b)                                     MGG(and, during the Debtco Structure Period, Debtco) shall ensure that itdiligently enforces its rights under any Subordination Agreement.

 

(c)                                      NoObligor shall (and the Obligor’s Agent shall ensure that no member of the MGGGroup shall) pay, prepay, defease, repay, purchase, exchange or enter into anysub-participation arrangements in respect of any principal amount or amountrepresenting capitalised interest under the High Yield Notes other than thepurchase by MGG of an aggregate of EUR 56,292,000 in nominal amount of theHigh Yield Notes which were made prior to 1 November 2002.

## ** **

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## **23.11**               Disposals

No Obligorshall (and the Obligor’s Agent shall ensure that no other member of the Groupwill), enter into a single transaction or a series of transactions (whetherrelated or not) and whether voluntary or involuntary to sell, lease, transferor otherwise dispose of any asset other than Permitted Disposals.

## ** **

## **23.12**               Merger

(a)                                      NoObligor shall (and the Obligor’s Agent shall ensure that no other member of theGroup will) enter into any amalgamation, demerger, merger or corporatereconstruction unless the Majority Lenders have given their prior writtenconsent thereto (such consent not to be unreasonably withheld) save that:

 

(i)                        Hoechst Newco3 may merge into the Company (with the Company being the surviving entity) asexpressly contemplated in the Business Combination Agreement;

 

(ii)                     the Company orNewco 2 (or both) may be converted from a GmbH (a limited liability company) oran AG (a stock corporation) (respectively) to a GmbH & Co. KGaA (a partnershiplimited by shares) or a KG (a limited partnership) or a GmbH (a limitedliability company);

 

(iii)                  a member of theGroup may merge with another member of the Group pursuant to a solventre-organisation **provided that** (1) MGG may not merge with any of its HoldingCompanies, (2) if MGG merges with any of its Subsidiaries MGG shall be thesurviving entity, (3) the Agent is given 30 Business Days’ notice by theObligor’s Agent of any such merger and the Majority Lenders do not object tosuch merger (on the basis that they believe it would reasonably be expected tobe prejudicial to any Security granted pursuant to the Security Documents) and(4) the surviving entity of any such merger would be liable for the obligationsof the entity it has merged with.

 

(b)                                     Paragraph(a) above is subject to the provisions of Clause 23.36 (*Limitation on the Lenders’ control overGerman Obligors*).

## ** **

## **23.13**               Changeof business

(a)                                      TheObligor’s Agent shall procure that no substantial change is made to the generalnature of the business of the MGG Group from that carried on at the date ofthis Agreement.

 

(b)                                     TheObligor’s Agent shall procure that Newco 2 shall not carry on any business, ownany assets (other than (i) Newco 2’s shareholding in MGG or Debtco, (ii)rights under Intra-Group Loans permitted pursuant to the terms of thisAgreement and (iii) any claims for rebates or indemnification with respect toTaxes and (iv) cash at bank) and shall not incur any liabilities of any naturewhatsoever save for: (i) any Security contemplated pursuant to the terms ofthis Agreement or the Mezzanine Finance Documents or any Direct MezzanineRefinancing Facility; (ii) professional fees and administration costs in theordinary course of business; (iii) any liabilities under the Finance Documents,Mezzanine Finance Documents, any Direct Mezzanine Refinancing Facility or theHigh Yield Documents and any Exchange Notes 

 

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Documents; (iv) any liabilities under Intra-Group Loans permittedpursuant to the terms of this Agreement; (v) any liabilities incurred pursuantto the Acquisition Documents, (vi) any liabilities under the Newco 2 Receivableand under any other loans made to Newco 2 from the Company and (vii) anyliabilities in respect of Taxes.

 

(c)                                      Neitherany Treasury Borrower nor Debtco shall carry on any business, own any assets(other than (i) Debtco’s shareholding in MGG and, (ii) rights under Intra-GroupLoans permitted pursuant to the terms of this Agreement and (iii) cash at bank)or incur any liabilities of any nature whatsoever save for: (i) any Securitycontemplated pursuant to the terms of this Agreement or the Mezzanine FinanceDocuments or any Direct Mezzanine Refinancing Facility; (ii) professional feesand administration costs in the ordinary course of business; (iii) anyliabilities under the Finance Documents, Mezzanine Finance Documents or anyDirect Mezzanine Refinancing Facility; (iv) any liabilities under Intra-GroupLoans permitted pursuant to the terms of this Agreement; and (v) in the case ofDebtco, any liabilities under any High Yield Proceeds Loan Agreement or Newco 2Loan Agreement or Exchange Notes Loan Agreement to which it is party.

 

(d)                                     TheObligor’s Agent shall procure that the Company shall not carry on any business,own any assets (other than (i) its shareholding in Newco 2, (ii) itsshareholding in any Holding Operating Company and (should any Holding OperatingCompany cease to be or fail to become a direct Subsidiary of the Company) ashareholding in one other operating company if such shareholding is reasonablyconsidered by the Obligor’s Agent to be required for the purposes of Germantrade tax consolidation, (iii) the receivable owed by Hoechst Newco 3 onexercise of the Call Option (as defined in the Business Combination Agreement),(iv) the Newco 2 Receivable, (v) its rights under the Acquisition Documents and(vi) cash at bank, (vii) its rights under any loan made to it or by it which isnot prohibited by the terms of this Agreement) and (viii) any claims againstits shareholders with respect to newly issued shares in the Company or incurany liabilities of any nature whatsoever save for: (i) any liabilities inrespect of Taxes; (ii) any liabilities incurred pursuant to the AcquisitionDocuments; (iii) professional fees and administration costs in the ordinarycourse of business; (iv) any liabilities under the Finance Documents, MezzanineFinance Documents or any Direct Mezzanine Refinancing Facility; (v) anyliabilities under any loans made to it which are not prohibited by the terms ofthis Agreement; (vi) any liabilities under subordination agreementssubordinating its claims against any of its Subsidiaries to the RefinancingNotes and (vii) (for the avoidance of any doubt) obligations to issue share optionsand shares pursuant to employee share option plans or otherwise in relation toshares in the Company.

 

(e)                                      Paragraphs(a), (b), (c) and (d) above are subject to the provisions of Clause 23.36 (*Limitationon the Lenders’ control over German Obligors*)

 

(f)                                        “Neither Messer Griesheim Zwerte Vermögensverwaltungs GmbH NovMesser Griesheim Erste Vermögensverwaltungs GmbH shall carry on any business,own any assets or incur any liabilities of any nature whatsoever other than inconnection with the Sale and Leaseback Transaction.”

## ** **

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## **23.14**               Insurance

(a)                                      EachObligor shall (and the Obligor’s Agent shall ensure that each member of the MGGGroup will) maintain insurances on and in relation to its business and assetswith reputable underwriters or insurance companies against those risks and tothe extent as is usual for companies carrying on the same or substantiallysimilar business in the country or countries in which it owns or leasesproperty or otherwise conducts its business (including, without limitation,loss of earnings, business interruption and directors and officers liabilitycover where available on a cost-effective basis).

 

(b)                                     EachObligor shall (if so requested in writing) supply the Agent with copies of allinsurance policies or certificates of insurance evidencing compliance withparagraph (a) above or (in the absence of the same) such other evidence of theexistence of such policies as may be reasonably acceptable to the Agent.

 

(c)                                      EachObligor shall notify the Agent of any material changes to the insurance coverit (and, in the case of the Obligor’s Agent, each member of the MGG Group) fromtime to time has in place.

## ** **

## **23.15**               EnvironmentalCompliance

The Obligor’sAgent shall (and the Obligor’s Agent shall ensure that each member of the MGGGroup will) comply in all material respects with all Environmental Law andobtain and maintain any Environmental Permits and take all reasonable steps inanticipation of known or expected future changes to or obligations under thesame, in each case, where failure to do so would reasonably be expected to havea Material Adverse Effect.

## ** **

## **23.16**               EnvironmentalClaims

The Obligor’sAgent shall inform the Agent in writing as soon as reasonably practicable uponbecoming aware of the same:

 

(a)                                      ifany Environmental Claim has been commenced or (to the best of the Obligor’sAgent’s knowledge and belief) is threatened against any member of the Group; or

 

(b)                                     ofany facts or circumstances which will or are reasonably likely to result in anyEnvironmental Claim being commenced or threatened against any member of theGroup,

 

where theclaim would reasonably be expected, if determined against that member of theGroup, to have a Material Adverse Effect.

## ** **

## **23.17**               Taxation

(a)                                      EachObligor shall (and the Obligor’s Agent shall ensure that each Material Companywill) duly and punctually pay and discharge all material Taxes imposed upon itor its assets within the time period allowed without incurring penalties (saveto the extent that (i) payment is being contested in good faith, (ii) adequatereserves are being maintained for those Taxes and (iii) where such payment canbe lawfully withheld).

 

(b)                                     NoObligor shall (and the Obligor’s Agent shall ensure that no Material Companywill) be materially overdue in the filing of any tax returns.

 

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(c)                                      EachObligor shall (and the Obligor’s Agent shall ensure that each member of theGroup will) do all such things as are necessary to ensure that no claims are orare reasonably likely to be asserted against any member of the Group withrespect to Taxes which would reasonably be expected to have a Material AdverseEffect.

 

(d)                                     NoObligor shall (and the Obligor’s Agent shall ensure that no member of the Groupwill) enter into any arrangements in relation to Taxes which may give rise to:

 

(i)                        either anyHolding Company of MGG having a claim against any member of the MGG Group,unless subordinated in a manner confirmed in writing by the Agent as beingsatisfactory; or

 

(ii)                     any member of theMGG Group being liable for any obligation of any Holding Company of MGG,

 

except thateach member of the Group incorporated in Germany may enter into an arrangementpursuant to which it forms a consolidated group with the Company and/or Newco 2and/or Debtco for German trade tax and/or German VAT purposes only.

## **23.18**               Security

Each Obligorshall, at its own expense, take all such action and the Obligor’s Agent shallensure that it and Newco 2 and any other member of the Newco 2 Group shall, atits own expense, take all such action:

 

(a)                                      asthe Agent or the Security Trustee may require (acting reasonably) for thepurpose of perfecting or protecting the Finance Parties’ rights under andpreserving the Security intended to be created or evidenced by any of theFinance Documents; and

 

(b)                                     asthe Agent or the Security Trustee may require following the making of anydeclaration pursuant to Clause 24.15 (*Acceleration*) for facilitating therealisation of any such Security or any part thereof.

## ** **

## **23.19**               Pensions

(a)                                      TheObligor’s Agent will, if requested by the Agent, deliver to the Agent at suchtime as those reports are prepared in order to comply with then currentstatutory or auditing requirements (if any), actuarial reports in relation tothe pension schemes for the time being operated by members of the Group.

 

(b)                                     TheObligor’s Agent shall (and shall procure that each member of the Group will)ensure that all pension schemes applicable to it are fully funded (whererequired by applicable law) based on reasonable actuarial assumptions and areadministered and funded in accordance with applicable law where failure to doso would reasonably be expected to have a Material Adverse Effect.

## ** **

## **23.20**               Access

The Obligor’sAgent shall ensure that any one or more representatives, agents and advisers ofthe Agent will, on reasonable grounds and with reasonable prior notice (but notmore often than once during each financial year of Newco 2 unless the Agentreasonably believes that an Event of Default has occurred), be allowed to haveaccess to the assets, books, records and 

 

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premises ofeach member of the Group and to inspect the same during normal business hours(at the expense of the Obligor’s Agent).

## ** **

## **23.21**               Preservationof assets

Each Obligorshall (and the Obligor’s Agent shall ensure that each member of the Group will)maintain and preserve all of its assets that are necessary in the conduct ofthe business of the MGG Group (taken as a whole) as conducted at the date ofthis Agreement in good working order and condition, ordinary wear and tearexcepted and where failure to do so would reasonably be expected to have aMaterial Adverse Effect.

## ** **

## **23.22**               IntellectualProperty

Each Obligorshall (and the Obligor’s Agent shall ensure that each member of the Groupwill), save where failure to do so would not reasonably be expected to have aMaterial Adverse Effect:

 

(a)                                      makesuch registrations and pay such fees and other amounts as are necessary to keepthose registered Intellectual Property Rights of the Group in force and torecord its interest in those Intellectual Property Rights;

 

(b)                                     observeand comply with all material obligations and laws to which it in its capacityas registered proprietor, beneficial owner, user, licensor or licensee of theIntellectual Property Rights (or any part thereof) is subject;

 

(c)                                      doall acts as are reasonably practicable (including, without limitation, theinstitution of legal proceedings) to maintain, protect and safeguard theIntellectual Property of the Group as a whole; and

 

(d)                                     notterminate or discontinue the use of any such Intellectual Property save thatlicensing arrangements in relation to such Intellectual Property may be enteredinto **providedthat**such licensing arrangements:

 

(i)                        do not allowany further sub-licensing by the licensee; and

 

(ii)                     do not have amaterial adverse effect on the value of any of the Intellectual Propertylicensed under such.

## ** **

## **23.23**               Vendor Warranties and Acquisition Closing Conditions

(a)                                      TheObligor’s Agent shall ensure that the Company and any other relevant Obligorwill diligently pursue all material claims for breach of contract or warrantyby, or misrepresentation by, or indemnity or other claim against the Vendor orany of the Vendor’s Affiliates under or in connection with any AcquisitionDocuments, unless the Agent (acting on the instruction of the Majority Lenders)has consented in writing to such claim not being made.

 

(b)                                     Ifthe Majority Lenders (through the Agent) notify the Obligor’s Agent that intheir opinion one or more of the Acquisition Closing Conditions has not beensatisfied the Obligor’s Agent shall ensure that the Company shall promptlyexercise its rights under the Acquisition Documents in relation to the non-satisfactionof such Acquisition Closing Condition(s).

## ** **

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## **23.24**               Amendments

Neither theObligor’s Agent nor any relevant Obligor shall (and the Obligor’s Agent shallensure that the Company shall not) amend, vary, novate, supplement or terminateany of the Acquisition Documents, the Shareholders’ Agreement, any of theMezzanine Finance Documents, any documents relating to any Direct MezzanineRefinancing, any Exchange Notes Documents, any Exchange Notes Loan Agreementany of the High Yield Documents, any High Yield Proceeds Loan Agreement, anyNewco 2 Loan Agreement, any Subordination Agreement, the constitutionaldocuments or any other document delivered to the Agent pursuant to Clause 4 (*Conditionsof Utilisation*) or Clause 26 (*Changes to the Obligors*) or waive anyright thereunder other than:

 

(a)                                      anyamendment, variation or waiver which is of a minor or technical nature; or

 

(b)                                     anyamendment, variation or waiver which could not reasonably be expected to havean adverse effect on the rights of the Finance Parties under the FinanceDocuments or be prejudicial to the interests of the Finance Parties under theFinance Documents; or

 

(c)                                      (inthe case of any of the Mezzanine Finance Documents or any documents relating toany Direct Mezzanine Refinancing) any amendment, variation, novation orsupplement thereto which is not expressly prohibited under the terms of theapplicable Intercreditor Deed;

 

(d)                                     (inthe case of the High Yield Documents) any amendment, variation, novation,supplement of any such High Yield Document or waiver of any right thereunderwhich is not inconsistent with the definition of High Yield Notes in Clause 1.1(*Definitions*);or

 

(e)                                      inrespect of the Mezzanine Finance Documents, the termination thereof incircumstances where the Mezzanine Outstandings have either:

 

(i)                        been fullyrefinanced by the proceeds of High Yield Proceeds Loans or any Direct MezzanineRefinancing; or

 

(ii)                     been fullyreplaced by Exchange Notes;

 

(f)                                        in the case of any High Yield Proceeds Loan Agreement, Newco 2 LoanAgreement or any relevant Subordination Agreement, any amendment, variation,novation, supplement of any such agreement which is required to ensure that theDebtco Introduction Date or the Debtco Exit Date occurs or (in the case of theHigh Yield Proceeds Loan Agreement only) any change which is permitted to bemade under the terms of the High Yield Subordination Agreement;

 

(g)                                     inthe case of any Exchange Notes Loan Agreement, any change which is permitted tobe made under the terms of the Exchange Notes Subordination Agreement;

 

(h)                                     inthe case of any Exchange Notes Documents, any amendment, variation, novation orsupplement of any such document or waiver of any right thereunder which is notinconsistent with the definition of Exchange Notes in Clause 1.1 (*Definitions*);

 

(i)                                         as expressly permitted or required pursuant to any Finance Document;

 

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(j)                                         as consented to in writing by the Majority Lenders, it being notedthat in the event of any request for the increase of capital (Stammkapital) ofany German Obligor which is constituted in the form of a GmbH as a result ofany such capital increase the maximum amount that may be claimed against suchGerman Obligor under any guarantee or security provided by such German Obligormay be reduced pursuant to paragraph (f) of Clause 19.9 (*Limitation on German Obligor Guarantee*)of this Agreement and corresponding provisions in the relevant SecurityDocuments to which such German Obligor is a party.

## ** **

## **23.25**               Transactions with Related Parties

No Obligorshall (and the Obligor’s Agent shall ensure that no member of the MGG Groupwill) enter into any arrangement or contract with any of its Related Partiesother than where:

 

(a)                                      bothparties to the arrangement are members of the MGG Group;

 

(b)                                     sucharrangement or contract is entered into on an arm’s length basis in good faithand in the commercial interests of the members of the MGG Group party thereto;or

 

(c)                                      sucharrangement or contract is expressly permitted under the terms of the FinanceDocuments.

## ** **

## **23.26**               Feesand commissions

No Obligorshall (and the Obligor’s Agent shall ensure that no member of the Group will)pay any fees or commissions to any person other than:

 

(a)                                      anyfees payable on arm’s length terms to third parties who have rendered serviceor advice to such Group member required by such Group member in the ordinarycourse of business;

 

(b)                                     non-executivedirector fees payable to any non-executive directors of any member of theGroup; and

 

(c)                                      asrequired under the Finance Documents, the Mezzanine Finance Documents, anyDirect Mezzanine Refinancing Facility, any Exchange Notes Documents or the HighYield Documents; and

 

(d)                                     anyfees payable in connection with the Acquisition or the Finance Documents or theMezzanine Finance Documents or the Direct Mezzanine Refinancing Facility or theHigh Yield Documents or the Exchange Notes Documents.

## ** **

## **23.27**               TreasuryTransactions

No Obligorshall (and the Obligor’s Agent shall ensure that no member of the Group will)enter into any Treasury Transaction which is not a Permitted TreasuryTransaction.

## ** **

## **23.28**               TheAcquisition

The Obligor’sAgent shall (and shall ensure that each member of the Group will):

 

(a)                                      inrelation to the Acquisition, comply in all material respects with all materialapplicable laws and all material requirements of relevant regulatoryauthorities;

 

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(b)                                     atthe request of the Agent, provide the Agent with any material information inits possession relating to the Acquisition;

 

(c)                                      usereasonable endeavours to ensure that no publicity material, press releases orother public documents in relation to the Acquisition (other than thoserequired by law or regulation) are published or released by or on behalf of it,or by its advisers which refer to any of the Finance Parties, the FinanceDocuments or the Facilities, unless such reference and the context in which itappears have previously been approved by the Agent (such approval not to beunreasonably withheld or delayed); and

 

(d)                                     notwithhold its consent, after the Closing Date, to any reasonable request by theAgent or the Arrangers to publicise the Facilities and the involvement of allor any of the Finance Parties in the Facilities and the transactionscontemplated thereby.

 

## ** **

## **23.29**               Hedging

The Obligor’sAgent and the Borrowers shall procure that Borrowers approved by the Agentshall, in accordance with the terms of the Hedging Letter, enter into HedgingAgreements (satisfactory to the Agent (acting reasonably)) which:

 

(a)                                      satisfythe requirements of the Hedging Letter; and

 

(b)                                     rank*paripassu* with the claims of the Finance Parties under the FinanceDocuments.

## ** **

## **23.30**               Guarantor Group and Security Coverage

(a)                                      Subjectto paragraph (d) of this Clause 23.30, the Obligor’s Agent shall ensure that asat the end of each calendar year (beginning with the calendar year ended 31December 2001):

 

(i)                        the aggregate(without double counting) of (1) the EBITDA of each of the Guarantors (butignoring losses before interest and tax of any Guarantor) and (2) the EBITDA ofeach Consolidated Subsidiary of MGG which is not a Guarantor (but ignoring anylosses before interest and tax of that Consolidated Subsidiary) in respect ofwhich 95% or more of its voting and issued share capital is pledged pursuant toa Security Document (the Guarantors referred to in paragraph (1) of thisparagraph (a)(i) taken together with the Subsidiaries referred to in paragraph(2) of this paragraph (a)(i) being collectively referred to as the “**SecurityParties**”); and

 

(ii)                     the aggregategross assets (without double counting and excluding assets which are notincluded on consolidation) of the Security Parties,

 

shall equal orexceed (in the case of paragraph (a)(i) above) 75 per cent. of the consolidatedEBITDA and (in the case of paragraph (a)(ii) above) 60 per cent. of theconsolidated gross assets of the Newco 2 Group, each as determined by referenceto the most recent Compliance Certificate and Auditor’s Report deliveredpursuant to Clause 21.2 (*Compliance Certificates*) in connectionwith the financial statements delivered pursuant to paragraph (a)(i) or(a)(iii) and (if relevant) paragraph (d)(i) or (d)(iii) of Clause 21.1 (*Financialstatements*).

 

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(b)                                     Subjectto paragraph (d) of this Clause 23.30, the Obligor’s Agent shall ensure that asat the end of each calendar year (beginning with the calendar year ending 31December 2001):

 

(i)                        the aggregate(without double counting) of the EBITDA of each of the Guarantors (but ignoringlosses before interest and tax of any Guarantor); and

 

(ii)                     the aggregategross assets (without double counting and excluding assets which are notincluded on consolidation) of the Guarantors,

 

shall equal orexceed (in the case of paragraph (b)(i) above) 65 per cent. of the consolidatedEBITDA and (in the case of paragraph (b)(ii) above) 55 per cent. of theconsolidated gross assets of the Newco 2 Group, each as determined by referenceto the most recent Compliance Certificate and Auditor’s Report deliveredpursuant to Clause 21.2 (*Compliance Certificates*) in connectionwith the financial statements delivered pursuant to paragraph (a)(i) or(a)(iii) and (if relevant) paragraph (d)(i) or (d)(iii) of Clause 21.1 (*Financialstatements*).

 

(c)                                      Forthese purposes, EBITDA in relation to the Newco 2 Group is calculated asdefined in Clause 22.2 (*Financial definitions*) and EBITDA of anySecurity Party shall be calculated on the same principles as that definitionbut on an unconsolidated basis.

 

(d)                                     Ifa Compliance Certificate or Auditor’s Report delivered pursuant to Clause 21.2(*ComplianceCertificates*) in connection with the financial statements deliveredpursuant to paragraph (a) (i) or (d) (i) and/or paragraph (a) (iii) or (d)(iii) of Clause 21.1 (*Financial Statements*) shows that any ofthe requirements of paragraphs (a) or (b) of this Clause 23.30 are not satisfied, then it shall not be treated asa breach of this Clause 23.30 nor shall a Default occur under Clause 24.3 (*Otherobligations*) in relation to such non satisfaction if on or beforethe date falling 60 days after delivery of such Compliance Certificate orAuditor’s Report either the managing director or two board members of Newco 2provide a certificate to the Agent (on behalf of the Finance Parties) (togetherwith any supporting documentation reasonably requested by the Agent) certifyingthat the failure to satisfy the percentage requirements of paragraphs (a) and(b) above was due to the sale of member(s) of the MGG Group with negativeEBITDA or the following conditions are satisfied:

 

(i)                        additionalmember(s) of the MGG Group become Additional Guarantor(s) in accordance withClause 26.4 (*Additional Guarantors*); and/or

 

(ii)                     additional SecurityDocument(s) are entered into creating pledge(s) over a Consolidated Subsidiaryor Consolidated Subsidiaries of MGG which are not Guarantors in respect ofwhich 95% or more (or, in the case of Messer Carburos S.A., 89% or more) of itsvoting and issued share capital are pledged pursuant to such SecurityDocument(s) (and the Agent is provided with legal opinions satisfactory to it(acting reasonably) in relation to each such Security Document from its legalcounsel in relation to the law of the jurisdiction of incorporation of thepledgor and the law governing the Security Document)

 

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(theAdditional Guarantors referred to in paragraphs (i) and the ConsolidatedSubsidiaries referred to in paragraph (ii) of this paragraph (d) beingcollectively referred to as the “**Top Up Security Parties**”); and

 

(iii)                  any Prokurist ofNewco 2 provides a certificate addressed to the Agent (on behalf of itself andthe Finance Parties) confirming (1) the EBITDA of each of the Top Up SecurityParties (ignoring losses before interest and tax) and (2) the aggregate grossassets of each of the Top Up Security Parties in respect of the applicablecalendar year and (3) that if the Top Up Security Parties had been taken intoaccount as Security Parties or Guarantors (as the case may be) for the purposesof Clause 23.30 (a) and (b) for the applicable calendar year then:

 

(A)            theaggregate (without double counting) of the EBITDA of each of the SecurityParties (but ignoring losses before interest and tax of any Security Party) andthe aggregate gross assets (without double counting) of the Security Parties asat the end of the applicable calendar year equalled or exceeded (asappropriate) 80% of the consolidated EBITDA and 65% of the consolidated grossassets of the Newco 2 Group; and

 

(B)              theaggregate (without double counting) of the EBITDA of each of the Guarantors(but ignoring losses before interest and tax of any Guarantor) and theaggregate gross assets (without double counting) of the Guarantors equalled orexceeded (as appropriate) 70% of the consolidated EBTIDA and 60% of theconsolidated gross assets of the Newco 2 Group; and

 

(iv)                 the auditors of Newco2 provide a report addressed to the Agent (on behalf of the Finance Parties)confirming the calculations set out in the certificate referred to in paragraph(iii) of this paragraph (d).

 

(e)                                      TheObligor’s Agent shall not be required to meet any of the above requirements ofthis Clause 23.30 to the extent that it satisfies the Agent that it cannot meetsuch requirements by reason of legal or regulatory impediment which are beyondits or any member of the Newco 2 Group’s control or the factors referred to inparagraph 4(a) of Schedule 15 (*Security Principles*). The Obligor’s Agent shalluse reasonable endeavours to ensure that relevant members of the Newco 2 Groupdo all that is necessary in order to ensure that such relevant members of theNewco 2 Group can become an Additional Guarantor and/or grant a pledge overshares in a Consolidated Subsidiary (as the case may be).

 

(f)                                        Without prejudice to its obligations under paragraphs (a), (b) and(d) above, the Obligor’s Agent shall procure that each person that is at anytime a Guarantor under (and as defined in) the Mezzanine Facility Agreement ora guarantor of any of the Direct Mezzanine Refinancing is also a Guarantorunder this Agreement at that time.

## ** **

## **23.31**               Accounting reference date

The Obligor’sAgent shall ensure that Newco 2 retains (and shall ensure that each member ofthe Newco 2 Group will retain) 31 December as its accounting reference date andshall not change the duration of any of its financial years, save that:

 

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(a)                                      Newco2 and its Subsidiaries incorporated in Germany may change their accountingreference dates to the first Quarter Date after the Closing Date **providedthat**the Obligor’s Agent shall use all reasonable endeavours toensure that after any such change the accounting reference dates of Newco 2 andeach of its Subsidiaries incorporated in Germany are, as soon as reasonablypracticable, changed back to 31 December 2001; and

 

(b)                                     Newco2 and its Subsidiaries incorporated in Germany may change their accountingreference dates to the first Quarter Date following the completion of thetransactions contemplated by the Business Combination Agreement relating to thetransfer of 662/3% of the shares of Newco 2 to HoechstNewco 3 and then the transfer of the shares of Hoechst Newco 3 to the Company, **providedthat**the Obligor’s Agent shall use all reasonable endeavours toensure that after any such change the accounting reference dates of Newco 2 andeach of its Subsidiaries incorporated in Germany are, as soon as reasonablypracticable, changed back to 31 December 2002.

## ** **

## **23.32**               RevisedGroup structure

If theObligor’s Agent or an Obligor becomes aware of any inaccuracies (as at theClosing Date) in the Group Structure Chart delivered to the Agent pursuant toClause 4 (*Conditionsof Utilisation*) it will deliver to the Agent as soon as isreasonably practicable thereafter a revised structure chart for the Group(covering the same categories of information as the Group Structure Chart).

## ** **

## **23.33**               Syndication

The Obligor’sAgent shall provide reasonable assistance to the Arrangers in the preparationof the Information Memorandum and the primary and general syndication of theFacilities (including, without limitation, by making senior managementavailable for the purpose of making presentations to, or meeting, potentiallending institutions) and will comply with all reasonable requests forinformation from potential syndicate members prior to completion ofsyndication.  The Obligor’s Agent andeach Obligor agree to be bound by the terms and conditions of the SyndicationLetter.

## ** **

## **23.34**               Federal Reserve Regulations

The Obligor’sAgent shall procure that each Borrower which is a US Group Member will use theFacilities without violating Regulations T, U and X.

## ** **

## **23.35**               Compliancewith ERISA

The Obligor’sAgent shall procure that each US Group Member and each ERISA Affiliate (each a“**RelevantCompany**”) shall not cause or permit to occur (a) an event whichwould result in the imposition of Security under Section 412 of the Code orSection 302 or 4068 of ERISA or (b) an ERISA Event that would reasonably beexpected to have a Material Adverse Effect.

## ** **

## **23.36**               Limitation on the Lenders’ control over GermanObligors

(a)                                      Theprovisions of Clause 23.12 (*Merger*) and Clause 23.13 (*Change ofbusiness*) (the “**Relevant Restrictive Undertakings**”) shallonly apply to each German Obligor in the following manner:

 

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(i)                        each GermanObligor shall give the Agent no less than twenty Business Days’ prior writtennotice of the intention of it to carry out any acts or take any stepsinconsistent with the Relevant Restrictive Undertakings;

 

(ii)                     the Agent shallbe entitled within ten Business Days of receipt of such a notice from a GermanObligor to request that such German Obligor supply the Agent with any relevantinformation in connection with the proposed action or steps referred to in suchnotice; and

 

(iii)                  the Agent shall, ifit decides that the proposed action or steps set out in such notice wouldreasonably be expected to be materially prejudicial to the interests of theFinance Parties under the Finance Documents, notify the relevant German Obligorof such a decision within twenty Business Days of its receipt of such a notice.

 

(b)                                     If:

 

(i)                        the Agentnotifies a German Obligor that the proposed action or steps set out in a noticedelivered by such German Obligor pursuant to paragraph (a) above wouldreasonably be expected to be materially prejudicial to the interests of theFinance Parties under the Finance Documents; and

 

(ii)                     the relevantGerman Obligor nevertheless proceeds to carry out such proposed action orsteps,

 

the Agentshall be entitled to (and, if so instructed by the Majority Lenders, shall)exercise all or any of its rights under Clause 24.15 (*Acceleration*).

## ** **

## **23.37**               ConditionsSubsequent

(a)                                      TheObligor’s Agent shall (and shall procure that each Initial Guarantor will) useits best efforts to obtain all releases and perform all other acts required todischarge in full the Security which secures any Financial Indebtedness whichis to be repaid as a condition precedent under paragraph 5(g) of Part I ofSchedule 2 (*ConditionsPrecedent*) on or before the Closing Date, and in any event theObligor’s Agent shall ensure that all such releases are obtained and shallperform all such other acts within 30 days of the Closing Date.

 

(b)                                     TheObligor’s Agent shall use its best endeavours to procure that the followingreports from KPMG are provided as soon as reasonably practicable after theClosing Date (together with Reliance Letters relating thereto) in form and substancesatisfactory to the Arrangers (acting reasonably):

 

(i)                        a reportdiscussing the Business Plan and its underlying assumptions (the “**ProjectionsReport**”); and

 

(ii)                     a reportdiscussing the results of the MGG Group in the year 2000 (the “**2000 OutturnReport**”).

 

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(c)                                      TheObligor’s Agent shall procure that the Original Financial Statements of MGG aredelivered to the Agent as soon as reasonably practicable and in any eventwithin 10 days of the Closing Date.

## ** **

## **23.38**               TotalDebt Relief Amount

The Obligor’sAgent shall ensure that the aggregate of the amount of the Term DisposalFacility which has been repaid and Relevant Debt Relief Amount as at the TermDisposal Facility Repayment Date is equal to or greater than EUR255,000,000 (orits equivalent in other currencies).

## ** **

## **23.39**               DebtcoExit Date

If for anyreason, after the Debtco Introduction Date, no German thin capitalisation wouldapply if the Debtco Exit Date were to occur, then at the request of the MajorityLenders the Obligor’s Agent shall use all reasonable endeavours to ensure thatthe Debtco Exit Date occurs.

## ** **

## **23.40**               Payments under Debtco Intra-Group Loans

Notwithstandingany other provision of any Finance Document, Debtco and MGG shall ensure thateach payment in respect of principal under any Intra-Group Loan to which Debtcois the lender and MGG is the borrower is either immediately used to reduce theOutstandings or the Mezzanine Outstandings (unless prohibited by the terms ofthe Intercreditor Deed) or placed in a bank account in Germany of Debtco whichis subject to a Security Document.

# ** **

# **24.**                           EVENTS OFDEFAULT

Each of theevents or circumstances set out in this Clause 24 is an Event of Default.

## ** **

## **24.1**                     Non-payment

An Obligordoes not pay on the due date any amount payable pursuant to a Finance Documentat the place at and in the currency in which it is expressed to be payableunless:

 

(a)                                      itsfailure to pay is caused by administrative or technical error; and

 

(b)                                     paymentis made within three Business Days of its due date.

## ** **

## **24.2**                     Financialcovenants

Anyrequirement of Clause 22 (*Financial covenants*) is not satisfied.

## ** **

## **24.3**                     Otherobligations

(a)                                      AnObligor or the Company or Newco 2 does not comply with any provision ofthe Finance Documents (other than those referred to in Clause 24.1 (*Non-payment*)and Clause 22 (*Financial covenants*)).

 

(b)                                     NoEvent of Default under paragraph (a) above in relation to Clause 23.1 (*Authorisation*),Clause 23.2 (*Compliance with laws*), Clause 23.14 (*Insurance*), Clause 23.15 (*EnvironmentalCompliance*), Clause 23.16 (*Environmental Claims*), Clause 23.17 (*Taxation*),Clause 23.18 (*Security*), Clause 23.19 (*Pensions*), 23.20 (*Access*), Clause 23.21 (*Preservationof assets*), Clause 23.22 (*Intellectual Property*), Clause 23.23 (*VendorWarranties and Acquisition Closing Conditions*), Clause 23.28 (*TheAcquisition*), Clause 23.32 (*Revised Group structure*), Clause 23.33 (*Syndication*)or Clause 23.35 (*Compliance with ERISA*) will occur if the failure to complyis capable of remedy and is remedied within twenty one Business Days of the

 

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earlier to occur of the date of the Agent giving notice to theObligor’s Agent or the Obligor’s Agent becoming aware of the failure to comply.

## ** **

## **24.4**                     Misrepresentation

Anyrepresentation or written statement made or deemed to be made by an Obligor orthe Company or Newco 2 in the Finance Documents or any other documentdelivered by or on behalf of any Obligor or the Company under or in connectionwith any Finance Document is or proves to have been incorrect or misleading inany material respect when made or deemed to be made unless (save in relation tothe Closing Representations) the underlying circumstances (if capable ofremedy) are remedied within twenty one Business Days of the earlier to occur ofthe date of the Agent giving notice to the Obligor’s Agent or the Obligor’sAgent becoming aware of such underlying circumstances.

## ** **

## **24.5**                     Crossdefault

(a)                                      AnyFinancial Indebtedness of any Material Company is not paid when due nor withinany originally applicable grace period.

 

(b)                                     AnyFinancial Indebtedness of any Material Company is declared to be or otherwisebecomes due and payable prior to its specified maturity as a result of an eventof default (however described).

 

(c)                                      Anycommitment for any Financial Indebtedness of any Material Company is cancelledor suspended by a creditor of such Material Company as a result of an event ofdefault (however described).

 

(d)                                     Anycreditor of any Material Company becomes entitled to declare any FinancialIndebtedness of such Material Company due and payable prior to its specifiedmaturity as a result of an event of default (however described).

 

(e)                                      NoDefault will occur under this Clause 24.5 if:

 

(i)                         the aggregateamount of Financial Indebtedness or commitment for Financial Indebtednessfalling within paragraphs (a) to (d) above is less than EUR10,000,000 (or itsequivalent in any other currency or currencies); or

 

(ii)                     such FinancialIndebtedness is repaid in full within 10 days of the earlier to occur of thedate of the Agent giving notice to the Obligor’s Agent of such event orcircumstance or the Obligor’s Agent becoming aware of such event orcircumstance.

 

(f)                                        For the purposes of this Clause 24.5, to the extent that any FinancialIndebtedness is supported by a Letter of Credit or Bank Guarantee issued underthis Agreement or the creditor of any Financial Indebtedness has been providedwith first priority security over a deposit in a bank account securing suchFinancial Indebtedness, then the amount of such Financial Indebtedness which issupported by such Letter of Credit or Bank Guarantee or security shall notcount as Financial Indebtedness for so long as such Letter of Credit or BankGuarantee or security remains in force.

## ** **

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## **24.6**                     Insolvency

(a)                                      AnyMaterial Company (other than a German Group Member) is unable or admitsinability to pay its debts as they fall due or suspends making payments on anyof its debts.

 

(b)                                     Thevalue of the assets of any Material Company (other than a German Group Member)is less than its liabilities (taking into account contingent and prospectiveliabilities).

 

(c)                                      TheCompany or any German Group Member who is a Material Company ceases or suspendsgenerally payment of its debts or publicly announces an intention to do so (oris deemed for the purposes of any law applicable to it to be) or is overindebted (*Überschuldung*)within the meaning of section 19 of the German Insolvency Code or unable ordeemed unable to pay its debts as they fall due (*Zahlungsunfähigkeit*or*drohendeZahlungsunfähigkeit*).

 

(d)                                     Anyevent occurs or proceedings are taken with respect to the Company or anyMaterial Company which has a similar or equivalent effect to any of the provisionsset out in paragraphs (a) to (c) above.

 

(e)                                      TheCompany or any Material Company, by reason of actual or anticipated financialdifficulties, commences negotiations with one or more of its creditors with aview to rescheduling any of its indebtedness.

 

(f)                                        A moratorium is declared in respect of any indebtedness of theCompany or any Material Company.

## ** **

## **24.7**                     Insolvencyproceedings

Any corporateaction, legal proceedings or other procedure or step is taken in relation to:

 

(a)                                      thesuspension of payments, a moratorium of any indebtedness, winding-up,dissolution, administration or reorganisation (by way of voluntary arrangement,scheme of arrangement or otherwise) of the Company or any Material Companyother than a solvent liquidation or reorganisation of any Material Company(other than Newco 2) which is not an Obligor;

 

(b)                                     acomposition, assignment or arrangement with any creditor of the Company or anyMaterial Company;

 

(c)                                      theappointment of a liquidator (other than in respect of a solvent liquidation ofa Material Company (other than Newco 2) which is not an Obligor), receiver,administrator, administrative receiver, compulsory manager or other similarofficer in respect of the Company or any Material Company or any of its assets;or

 

(d)                                     enforcementof any Security over any assets having a value greater than EUR10,000,000 (orits equivalent in any other currency or currencies) of any Material Company,

 

or anyanalogous procedure or step is taken in any jurisdiction.

 

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(e)                                      NoEvent of Default will occur under this Clause 24.7 if the Majority Lenders(acting reasonably) are satisfied that the Company or the relevant MaterialCompany (as the case may be) is contesting in good faith and by appropriateproceedings the relevant corporate action, legal proceedings or other procedureor step and that it is reasonably likely that such action, proceedings or stepswill be discharged within 60 days of their commencement.

## ** **

## **24.8**                     Creditors’process

Anyexpropriation, attachment, sequestration, distress or execution affects anyasset or assets of a Material Company having an aggregate value ofEUR10,000,000  (or its equivalent in anyother currency or currencies) and is not discharged within 60 days.

## ** **

## **24.9**                     TransactionSecurity

(a)                                      AnyObligor, the Company or Newco 2 fails to perform or comply with any of thematerial obligations assumed by it in the Security Documents.

 

(b)                                     Atany time any of the Transaction Security is or becomes unlawful or (subject tothe Reservations) is not, or ceases to be, legal, valid, binding or enforceableor otherwise ceases to be effective, in a manner and to an extent which theMajority Lenders reasonably consider to be materially prejudicial to theinterests of the Finance Parties under the Finance Documents.

 

(c)                                      NoEvent of Default will occur under paragraph (a) of this Clause 24.9 if thefailure is capable of remedy and it is remedied within 21 Business Days of theearlier of the date the Agent gives notice to the Obligor’s Agent or the Obligor’sAgent becoming aware of the failure to comply.

## ** **

## **24.10**               Otherindebtedness

Any event ofdefault (howsoever described) occurs under the Mezzanine Facility Agreement orany High Yield Notes or any Direct Mezzanine Refinancing or any Exchange Notes.

## ** **

## **24.11**               Subordination Agreements

Any party toany Intercreditor Deed or any Subordination Agreement or any Newco 2 LoanAgreement or any High Yield Proceeds Loan Agreement or any Exchange Notes LoanAgreement (other than any Finance Party) fails to comply with its obligationsunder any such agreement in a manner which is reasonably likely to bematerially prejudicial to the interests of any Finance Party under the FinanceDocuments.

## ** **

## **24.12**               Unlawfulness

It is orbecomes unlawful for an Obligor to perform any of its obligations under theFinance Documents in circumstances or to an extent which the Majority Lendersreasonably consider to be material prejudicial to the interests of any FinanceParty under the Finance Documents.

## ** **

## **24.13**               Repudiation

An Obligorrepudiates a Finance Document or any of the Transaction Security or evidencesan intention to repudiate a Finance Document or any of the TransactionSecurity.

## ** **

## **24.14**               Materialadverse change

Any event orcircumstance occurs which would reasonably be expected to have a MaterialAdverse Effect.

 

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## **24.15**               Acceleration

Subject toClause 24.16 (*Closing Period*) and 24.17 (*Clean-Up Period*) on and atany time after the occurrence of an Event of Default which is continuing, orotherwise in accordance with Clause 23.36 (*Limitation on the Lenders’ control over GermanObligors*), the Agent may, and shall if so directed by the MajorityLenders, by notice to the Obligor’s Agent:

 

(a)                                      cancelthe Total Commitments whereupon they shall immediately be cancelled;

 

(b)                                     declarethat all or part of the Loans, together with accrued interest, and all otheramounts accrued under the Finance Documents be immediately due and payable,whereupon they shall become immediately due and payable;

 

(c)                                      declarethat all or part of the Loans be payable on demand, whereupon they shallimmediately become payable on demand by the Agent on the instructions of theMajority Lenders;

 

(d)                                     exercise,or direct the Security Trustee to exercise, all or any of its or, as the casemay be, the Security Trustee’s rights, remedies, powers or discretions underany of the Finance Documents; and/or

 

(e)                                      requirethe Borrowers to:

 

(i)                        procure thatthe liabilities of each of the Lenders and the Fronting Banks under each Letterof Credit and Bank Guarantee are promptly reduced to zero; or

 

(ii)                     provide CashCollateral for each Letter of Credit and Bank Guarantee in an amount specifiedby the Agent and in the currency of that Letter of Credit or, as the case maybe, Bank Guarantee.

## ** **

## **24.16**               ClosingPeriod

During theClosing Period none of the Finance Parties shall be entitled to take any actionunder Clause 24.15 (*Acceleration*) or rescind, terminate orcancel this Agreement or the Facilities unless:

 

(i)                        a ClosingEvent of Default has occurred which is continuing; and/or

 

(ii)                     the AcquisitionClosing Conditions have not been satisfied or have been waived (eitherpartially or entirely) by the Company or MGG (unless (notwithstanding theAcquisition Closing Conditions not having been so satisfied without beingpartially or entirely waived by the Company or MGG (except in accordance withClause 23.24 (*Amendments*))) the Company is obliged pursuant to the termsof the Business Combination Agreement to consummate the MGG Acquisition on theClosing Date), and/or

 

(iii)                  any of the ClosingRepresentations made or deemed to be made by the Obligor’s Agent and eachObligor are not true in all material respects,

** **

**provided that**immediately upon the expiry of the Closing Period (subject to Clause 24.17 (*Clean-UpPeriod*)) all such rights, remedies and entitlements which would havebeen available to the Finance Parties but for this Clause 24.16 shall beavailable 

 

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to the FinanceParties notwithstanding that they may not have been used or available for useduring the Closing Period.

## ** **

## **24.17**               Clean-UpPeriod

Until theClean-Up Date, the Events of Default set out in Clause 24.3 (*Otherobligations*) (save in so far as it relates to Clause 23.37 (*Conditions Subsequent*)),Clause 24.4 (*Misrepresentation*) and Clause 24.5 (*Cross default*) shall notapply to any member of the MGG Group if reasonable steps are being taken by theObligor’s Agent and (as appropriate) any member of the MGG Group to cure anysuch Event of Default, unless such Event of Default:

 

(i)                        is reasonablylikely to have a material adverse effect on the ability of any Obligor toperform its payment obligations under the Finance Documents; or

 

(ii)                     has beenprocured, or approved, by any Holding Company of MGG or any of the Obligors(other than by way of any such company entering into any of the TransactionDocuments).

 

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**SECTION 9**

 

**CHANGES TO PARTIES**

 

# **25.**                           CHANGESTO THE LENDERS

## ** **

## **25.1**                     Assignments and transfers by the Lenders

Subject tothis Clause 25, a Lender (the “**Existing Lender**”) may:

 

(a)                                      assignany of its rights; or

 

(b)                                     transferby novation any of its rights and obligations,

 

to anotherperson (the “**New Lender**”).  TheAgent shall maintain a book-entry registration transfer system (the “**Register**”)for the purposes of all assignments and transfers made pursuant to this Clause25.

## ** **

## **25.2**                     Conditions of assignment or transfer

(a)                                      Theconsent of neither the Obligor’s Agent nor any other Obligor is required for anassignment or transfer by a Lender.

 

(b)                                     Theconsent of the Bookrunners is required for an assignment or transfer by aLender at any time prior to the last Syndication Date, save that no suchconsent is required for an assignment or transfer by a Lender to any of itsAffiliates.

 

(c)                                      Ifa Lender wishes to enter into an assignment or transfer in relation to aRevolving Facility at a time when any Letters of Credit or Bank Guarantees areoutstanding under that Revolving Facility, the consent of the relevant FrontingBanks in respect of such Letters of Credit or Bank Guarantees will be required(such consent not to be unreasonably withheld or delayed).

 

(d)                                     Anassignment will only be effective on the Agent recording the assignment on theRegister and receipt by the Agent of written confirmation from the New Lender(in form and substance satisfactory to the Agent) that the New Lender willassume the same obligations to the other Finance Parties as it would have beenunder if it was an Original Lender.

 

(e)                                      Atransfer will only be effective if the procedure set out in Clause 25.5 (*Procedurefor transfer*) is complied with.

 

(f)                                        A Lender may transfer or assign all or any part of its share of aFacility without transferring or assigning any part of its share of any otherFacility.

 

(g)                                     If:

 

(i)                        a Lenderassigns or transfers any of its rights or obligations under the FinanceDocuments or changes its Facility Office; and

 

(ii)                     as a result ofcircumstances existing at the date the assignment, transfer or change occurs,an Obligor would be obliged to make a payment to the New Lender or Lenderacting through its new Facility Office under Clause 14 (*Tax gross-up and indemnities*)or Clause 15 (*Increased costs*),

 

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then the NewLender or Lender acting through its new Facility Office is only entitled toreceive payment under those Clauses to the same extent as the Existing Lenderor Lender acting through its previous Facility Office would have been if theassignment, transfer or change had not occurred **provided that** this clause25.2(g) shall not affect any obligation of an Obligor to make a payment underClause 14 (*Taxgross-up and indemnities*) that results from a deduction of taximposed on the Agent by section 118E(3) of the Income and Corporation Taxes Act1988.

 

(h)                                     Ifa Lender transfers or assigns part but not all of its share of the Facilitiesto a person other than one of its Affiliates then such transfer or assignmentmust be in a minimum amount of EUR1,000,000 of its Commitment (or, if suchpartial transfer or assignment relates to a Dollar Facility or the TermDisposal Facility  in a minimum amountof $1,000,000).

 

(i)                                         If the Lender to whom the assignment or transfer is being made isnot party to the Intercreditor Deed as a Senior Lender then (if it does notbecome a Lender pursuant to a Transfer Certificate) it shall duly execute anddeliver to the Security Trustee and the Agent a deed of accession in the formrequired under the Intercreditor Deed so as to become a Senior Lender under theIntercreditor Deed.

## ** **

## **25.3**                     Assignment or transfer fee

The New Lendershall, on the date upon which an assignment or transfer takes effect, pay tothe Agent (for its own account) a fee of EUR750 **provided that** no such feeshall be paid in relation to any assignment or transfer:

 

(a)                                      bya Lender to one of its Affiliates; or

 

(b)                                     madepursuant to primary or general syndication of the Facilities.

## ** **

## **25.4**                     Limitation of responsibility of Existing Lenders

(a)                                      Unlessexpressly agreed to the contrary, an Existing Lender makes no representation orwarranty and assumes no responsibility to a New Lender for:

 

(i)                        the legality,validity, effectiveness, adequacy or enforceability of the Finance Documents orany other documents;

 

(ii)                     the financialcondition of any Obligor;

 

(iii)                  the performance andobservance by any Obligor or the Company or Newco 2 of its obligations underthe Finance Documents or any other documents; or

 

(iv)                 the accuracy of anystatements (whether written or oral) made in or in connection with any FinanceDocument or any other document,

 

and anyrepresentations or warranties implied by law are excluded.

 

(b)                                     EachNew Lender confirms to the Existing Lender and the other Finance Parties thatit:

 

(i)                        has made (andshall continue to make) its own independent investigation and assessment of thefinancial condition and affairs of each Obligor and its related

 

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entities in connection with its participation in this Agreement and hasnot relied exclusively on any information provided to it by the Existing Lenderin connection with any Finance Document; and

 

(ii)                     will continue tomake its own independent appraisal of the creditworthiness of each Obligor andits related entities whilst any amount is or may be outstanding under theFinance Documents or any Commitment is in force.

 

(c)                                      Nothingin any Finance Document obliges an Existing Lender to:

 

(i)                        accept are-transfer from a New Lender of any of the rights and obligations assigned ortransferred under this Clause 25; or

 

(ii)                     support anylosses directly or indirectly incurred by the New Lender by reason of thenon-performance by any Obligor, the Company or Newco 2 of its obligations underthe Finance Documents or otherwise.

## ** **

## **25.5**                     Procedurefor transfer

(a)                                      Subjectto the conditions set out in Clause 25.2 (*Conditions of assignment or transfer*) atransfer is effected in accordance with paragraph (b) below when the Agentexecutes an otherwise duly completed Transfer Certificate delivered to it bythe Existing Lender and the New Lender and the transfer is recorded by theAgent on the Register.  The Agent shall,as soon as reasonably practicable after receipt by it of a duly completedTransfer Certificate appearing on its face to comply with the terms of thisAgreement and delivered in accordance with the terms of this Agreement, executethat Transfer Certificate.

 

(b)                                     Onthe Transfer Date:

 

(i)                        to the extentthat in the Transfer Certificate the Existing Lender seeks to transfer bynovation its rights and obligations under the Finance Documents each of theObligors (which term shall include for the purposes of this Clause 25.5 theCompany and Newco 2) and the Existing Lender shall be released from furtherobligations towards one another under the Finance Documents and theirrespective rights against one another shall be cancelled (being the “**DischargedRights and Obligations**”);

 

(ii)                     each of theObligors and the New Lender shall assume obligations towards one another and/oracquire rights against one another which differ from the Discharged Rights andObligations only insofar as that Obligor and the New Lender have assumed and/oracquired the same in place of that Obligor and the Existing Lender;

 

(iii)                  the Agent, theSecurity Trustee, the Arrangers, the New Lender, the other Lenders and anyrelevant Fronting Banks and any relevant Ancillary Lender shall acquire thesame rights and assume the same obligations between themselves as they wouldhave acquired and assumed had the New Lender been an Original Lender with therights and/or obligations acquired or assumed by it as a result of the transferand to that extent the Agent, the Security Trustee, the Arrangers, any relevantFronting Banks, any Ancillary Lender and the Existing 

 

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Lender shall each be released from further obligationsto each other under this Agreement; and

 

(iv)                 the New Lender shallbecome a Party as a “Lender”.

## ** **

## **25.6**                     Sub-participations by Lenders

Any Lendermay, without the consent of the Obligor’s Agent or any Obligor, enter into withany person:

 

(a)                                      sub-participationagreements relating to this Agreement; and/or

 

(b)                                     anyother transactions under which payments are to be made by reference to thisAgreement or any Obligor.

 

Any Lendermay, without the consent of the Obligor’s Agent or any Obligor, at any timecharge or create a security interest in all or any portion of its rights underthis Agreement to secure obligations of such Lender, including withoutlimitation (i) any charge or creation of a security interest to secureobligations to a Federal Reserve Bank and (ii) in the case of any Lender thatis a fund, any charge or creation of a security interest of all or any portionof such Lender’s rights under this Agreement to any holders of obligationsowed, or securities issued, by such Lender as security for such obligations orsecurities, or to any trustee for, or any other representative of, suchholders, and this paragraph shall not apply to any such charge or securityinterest; **providedthat** no such charge orcreation of a security interest shall:

 

(i)                                         release a Lender from any of its obligations hereunder or substituteany such chargor or holder of the benefit of such security interest for suchLender as a party hereto; or

 

(ii)                                      requireany payments to be made by any Obligor other than as required by thisAgreement.  A copy of any notice ofcharge or creation of security interest as envisaged in this paragraph shall bedelivered to the Agent and the Agent shall not be obliged to take any action inregard to such notice unless instructed to do so by the relevant Lender whichhas given such security.

## ** **

## **25.7**                     Disclosure of information

Any Lender maydisclose to any of its Affiliates and any other person:

 

(a)                                      to(or through) whom that Lender assigns or transfers (or proposes to assign ortransfer) all or any of its rights and obligations under this Agreement;

 

(b)                                     with(or through) whom that Lender enters into (or proposes to enter into) anysub-participation in relation to, or any other transaction under which paymentsare to be made by reference to, this Agreement or any Obligor; or

 

(c)                                      towhom, and to the extent that, information is required to be disclosed by anyapplicable law or regulation,

 

anyinformation about any Obligor, the Group and the Finance Documents as thatLender 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 aConfidentiality Undertaking.

 

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# **26.**                           CHANGESTO THE OBLIGORS

## ** **

## **26.1**                     Assignment and transfers by Obligors

No Obligor mayassign any of its rights or transfer any of its rights or obligations under theFinance Documents other than as provided in Clause 26.7 (*Transfers on Debtco Introduction Date*)or Clause 26.8 (*Transfer on Debtco Exit Date*).

## ** **

## **26.2**                     AdditionalBorrowers

(a)                                      TheObligor’s Agent may request that MGG and/or any Consolidated Subsidiary of MGG99% or more of whose voting and issued share capital is owned directly orindirectly by MGG becomes an Additional Borrower.  That Consolidated Subsidiary or MGG (as the case may be) shallbecome an Additional Borrower if:

 

(i)                        (other than inthe case of any Initial Borrower) all the Lenders approve the addition of thatConsolidated Subsidiary or, if that Consolidated Subsidiary is incorporated inLuxembourg, The Netherlands, Germany or in any state of the United States ofAmerica, the Majority Lenders approve the addition of that ConsolidatedSubsidiary as an Additional Borrower (such approval not to be unreasonablywithheld it being noted that as at the date hereof there are German thincapitalisation concerns which would mean that while MGG is a Borrower no otherGerman Group Member should be a Borrower);

 

(ii)                        the Obligor’sAgent delivers to the Agent a duly completed and executed Accession Letter;

 

(iii)                     the Obligor’sAgent confirms that no Default (or, during the Closing Period, no Closing Eventof Default) is continuing or would occur as a result of that Consolidated Subsidiaryor MGG (as the case may be) becoming an Additional Borrower; and

 

(iv)                    the Agent hasreceived all of the documents and other evidence listed in Part II of Schedule2 (*Conditionsprecedent*) in relation to that Additional Borrower, each in form andsubstance satisfactory to the Agent.

 

(b)                                     TheObligor’s Agent may request that Debtco becomes an Additional Borrower.  Debtco shall become an Additional Borrowerif:

 

(i)                        the Obligor’sAgent delivers to the Agent a duly completed and executed Accession Letter;

 

(ii)                     the Obligor’sAgent confirms that no Default is continuing or would occur as a result ofDebtco becoming an Additional Borrower;

 

(iii)                  the Agent hasreceived all of the documents and other evidence listed in Part III of Schedule2 (*ConditionsPrecedent*) in relation to Debtco, each in form and substancesatisfactory to the Agent; and

 

(iv)                 no High Yield Noteshave been issued and twelve Months have elapsed since the date of thisAgreement.

 

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(c)                                      TheAgent shall notify the Obligor’s Agent and the Lenders promptly upon beingsatisfied that it has received (in form and substance satisfactory to it) allthe documents and other evidence listed in Part II (or Part III, in the case ofthe accession of Debtco) of Schedule 2 (*Conditions precedent*).

## ** **

## **26.3**                     Resignation of a Borrower

(a)                                      TheObligor’s Agent may request that a Borrower (other than MGG) ceases to be aBorrower by delivering to the Agent a Resignation Letter.

 

(b)                                     TheAgent shall accept a Resignation Letter and notify the Obligor’s Agent and theLenders of its acceptance if:

 

(i)                        no Default iscontinuing or would result from the acceptance of the Resignation Letter (andthe Obligor’s Agent has confirmed this is the case); and

 

(ii)                        that Borroweris under no actual or contingent obligations (in respect of principal orinterest in relation to any Loan made to it or in respect of any actual orcontingent obligations relating to a Bank Guarantee or Letter of Credit issuedat its request) as a Borrower under any Finance Documents,

 

whereuponthat company shall cease to be a Borrower and shall have no further rights orobligations under the Finance Documents.

## ** **

## **26.4**                     AdditionalGuarantors

(a)                                      TheObligor’s Agent may request that any member of the MGG Group (or, with effectfrom the Debtco Introduction Date, Debtco) becomes an AdditionalGuarantor.  That member of the MGG Groupor Debtco, as the case may be, shall become an Additional Guarantor if:

 

(i)                        the Obligor’sAgent delivers to the Agent a duly completed and executed Accession Letter or,in the case of Messer Austria GmbH, the duly executed Austrian Guarantee; and

 

(ii)                        the Agent hasreceived all of the documents and other evidence listed in Part II (or, in thecase of Debtco, Part III) of Schedule 2 (*Conditions precedent*) in relation to thatAdditional Guarantor (other than, in the case of Messer Austria GmbH, anAccession Letter), each in form and substance satisfactory to the Agent.

 

(b)                                     TheAgent shall notify the Obligor’s Agent and the Lenders promptly upon beingsatisfied that it has received (in form and substance satisfactory to it) allthe documents and other evidence listed in Part II (or, in the case of Debtco,Part III) of Schedule 2 (*Conditions precedent*).

## ** **

## **26.5**                     Repetition of Representations

Delivery of anAccession Letter constitutes confirmation by the relevant ConsolidatedSubsidiary of MGG or Debtco (as the case may be) that the RepeatingRepresentations (or, during the Closing Period, the Closing Representations)are true and correct in relation to it as at the date of delivery as if made byreference to the facts and circumstances then existing.

 

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## **26.6**                     Resignation of a Guarantor

(a)                                      TheObligor’s Agent may request that a Guarantor (other than MGG) ceases to be aGuarantor by delivering to the Agent a Resignation Letter.

 

(b)                                     TheAgent shall accept a Resignation Letter and notify the Obligor’s Agent and theLenders of its acceptance if:

 

(i)                        no Default iscontinuing or would result from the acceptance of the Resignation Letter (andthe Obligor’s Agent has confirmed this is the case);

 

(ii)                     all the Lendershave consented to the request of the Obligor’s Agent **provided that** if the sharesin such Guarantor have been (or are about to be) sold pursuant to a PermittedDisposal, then all the Lenders shall be deemed to consent to such request.

## ** **

## **26.7**                     Transfers on Debtco Introduction Date

(a)                                      Allof the Parties agree that if there have been any Utilisations made prior to theDebtco Introduction Date at the request of any Borrower whose RelevantJurisdiction is Germany (a “**Relevant German Borrower**”) then on theDebtco Introduction Date the rights and obligations of the Relevant GermanBorrowers as Borrowers shall be automatically transferred to Debtco so that onsuch date:

 

(i)                        each of theRelevant German Borrowers (other than Debtco) who have had Loans made to themor who have had Letters of Credit or Bank Guarantees issued at their requestprior to the Debtco Introduction Date shall be released from their obligationsas Borrowers (but not as Guarantors) under the Finance Documents and theirrights as Borrowers shall be cancelled (being the “**German Borrowers Discharged Rights andObligations**”);

 

(ii)                     Debtco shallassume obligations and acquire rights under the Finance Documents which differfrom the German Borrowers Discharged Rights and Obligations only insofar asDebtco has assumed and/or acquired the same in place of the Relevant GermanBorrowers.

 

(b)                                     EachRelevant German Borrower and Debtco agree that Debtco shall be deemed to havemade loans to each Relevant German Borrower on the Debtco Introduction Dateimmediately after the transfers referred to in paragraph (a) above in an amountequal to the sum of:

 

(i)                        the aggregateOutstandings of the Loans made to that Relevant German Borrower immediatelyprior to the transfer referred to in paragraph (a) above; and

 

(ii)                     the aggregateinterest, commissions and fees accrued but not paid in relation to theUtilisations referred to in paragraph (i) of this paragraph (b) in relation tothat Relevant German Borrower and in relation to any Letters of Credit and BankGuarantees issued at that Relevant German Borrower’s request.

 

(c)                                      EachRelevant German Borrower agrees to indemnify Debtco on demand in respect of anyamount demanded by any Finance Party from Debtco pursuant to the provisions

 

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of Clause 8 (*Borrower’s Liabilities in relation to Letters ofCredit and Bank Guarantees*) in connection with a Letter of Credit orBank Guarantee requested by that Relevant German Borrower.

## ** **

## **26.8**                     Transfers on Debtco Exit Date

(a)                                      Allof the Parties agree that if on the Debtco Exit Date there are any Utilisationsin respect of which Debtco is the Borrower, then on the Debtco Exit Date therights and obligations of Debtco as a Borrower in respect of such Utilisationsshall be automatically transferred to the Initial German Borrowers in theamounts specified in the Debtco Exit Transfer Certificate (and if any TermFacility Loan is transferred in parts to different Initial German Borrowersthen such Loan shall be divided into a number of loans equal to the number ofBorrowers to whom it is being transferred **provided that** the provisions of Clause 4.4(*Maximumnumber of Loans, Letters of Credit or Bank Guarantees*) and Clause5.3 (*Currencyand amount*) are complied with) so that on the Debtco Exit Date:

 

(i)                        Debtcoshall  be released from its obligationsas a Borrower under the Finance Documents and its rights as a Borrower shall becancelled (being the “**Debtco Discharged Rights and Obligations**”);

 

(ii)                     each InitialGerman Borrower shall assume obligations and acquire rights under the FinanceDocuments in relation to each Utilisation or part of each Utilisationidentified as being transferred to it in the Debtco Exit Transfer Certificatewhich differ from the Debtco Discharged Rights and Obligations in respect ofeach such Utilisation or, as the case may be, each such part of eachUtilisation only insofar as such Initial German Borrower has assumed the samein place of Debtco.

## ** **

## **26.9**                     German Security and Debtco Introduction Date

Waivingsection 418 of the German Civil Code, the Parties agree that any Securitycreated by any Relevant German Borrower prior to the Debtco Introduction Dateshall not be affected by any transfer or assumption of the obligations securedby that Security to or by Debtco.

## ** **

## **26.10**               Company ceases to be Party on MGG accession

The Partiesagree that the Company shall cease to have any obligations hereunder on thefirst date upon which the following conditions have been satisfied: (1) MGG isa Borrower and Guarantor hereunder and (2) the certificate referred to inClause 26.11 (*MGG Accession*) has been delivered to the Agent. For theavoidance of any doubt, any representation made or deemed made by the Companypursuant to Clause 20 (*Representations*) shall, if thecircumstances described in Clause 24.4 (*Misrepresentation*) are satisfied, becapable of constituting an Event of Default under Clause 24.4 (*Misrepresentation*)after the Company has ceased to be a Party and the breach by the Company of anyof its obligations expressed to be assumed by it prior to the date the Companyhas ceased to be a Party shall be capable of constituting an Event of Defaultunder Clause 24.1 (*Non-Payment*) or Clause 24.3 (*OtherObligations*).  Any obligationowed by the Company hereunder immediately prior to MGG becoming a Party shallbe assumed by MGG upon MGG becoming a Party.

 

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## **26.11**               MGGAccession

Notwithstandingand superceding any other provision in any Finance Document, MGG shall have norights and no obligations under this Agreement or any other Finance Documentuntil it has become a Guarantor and Borrower hereunder and in addition hasdelivered a certificate to the Agent confirming that the MGG Acquisition hascompleted in accordance with the terms of the Acquisition Documents.  If such a certificate has not been delivered(whether in original or by fax) by 11.59 p.m. on 2 May 2001, any Securitygranted by MGG to any Finance Party under any Security Document shall bereleased, and treated for the purposes of this Agreement as if it had neverbeen given and any fees actually paid under Clause 13 or any other paymentsactually made to the Finance Parties by MGG under this Agreement or similarpayments by MGG under any of the other Finance Documents shall be promptlyrepaid to MGG.

 

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**SECTION 10**

 

**THE FINANCE PARTIES**

 

# **27.**                           ROLE OF THE AGENT AND THE ARRANGERS AND THE OBLIGOR’SAGENT

## **27.1**                     Appointment of the Agent

(a)                                      Eachof the Arrangers, the Lenders and the Fronting Banks appoints the Agent to actas its agent under and in connection with the Finance Documents.

 

(b)                                     Eachof the Arrangers, the Lenders and the Fronting Banks authorises the Agent toexercise the rights, powers, authorities and discretions specifically given tothe Agent under or in connection with the Finance Documents together with anyother incidental rights, powers, authorities and discretions.

 

## **27.2**                     Duties of the Agent

(a)                                      TheAgent shall promptly forward to a Party the original or a copy of any documentwhich is delivered to the Agent for that Party by any other Party.

 

(b)                                     Ifthe Agent receives notice from a Party referring to this Agreement, describinga Default and stating that the circumstance described is a Default, it shallpromptly notify the Lenders and, where appropriate, the Fronting Banks.

 

(c)                                      TheAgent shall promptly notify the Lenders and, where appropriate, the Fronting Banksof any Default arising under Clause 24.1 (*Non-payment*).

 

(d)                                     TheAgent’s duties under the Finance Documents are solely mechanical andadministrative in nature.

 

## **27.3**                     Role of the Arrangers

Except as specifically provided in the FinanceDocuments, the Arrangers have no obligations of any kind to any other Partyunder or in connection with any Finance Document.

 

## **27.4**                     No fiduciary duties

(a)                                      Nothingin this Agreement constitutes the Agent, an Arranger or a Fronting Bank as atrustee or fiduciary of any other person.

 

(b)                                     Neitherthe Agent, an Arranger nor any Fronting Bank nor any Ancillary Lender shall bebound to account to any Lender for any sum or the profit element of any sumreceived by it for its own account.

 

## **27.5**                     Business with the Group

The Agent, the Arrangers and the Fronting Banks mayaccept deposits from, lend money to and generally engage in any kind of bankingor other business (including, without limitation, providing advice) with anymember of the Group.

 

## **27.6**                     Rights and discretions of the Agent

(a)                                      TheAgent may rely on:

 

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

 

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

 

(b)                                     TheAgent may assume (unless it has received notice to the contrary in its capacityas agent for the Lenders) that:

 

(i)                        no Default has occurred (unless it has actual knowledge of a Defaultarising under Clause 24.1 (*Non-payment*));

 

(ii)                     any right, power, authority or discretion vested in any Party or theMajority Lenders has not been exercised;

 

(iii)                  any notice or request made by the Obligor’s Agent (other than aUtilisation Request or Selection Notice) is made on behalf of and with theconsent and knowledge of all the Obligors; and

 

(iv)                 anyUtilisation Request or Selection Notice made by the Obligor’s Agent on behalfof any Borrower is made on behalf of and with the consent and knowledge of thatBorrower.

 

(c)                                      TheAgent may engage, pay for and rely on the advice or services of any lawyers,accountants, surveyors or other experts.

 

(d)                                     TheAgent may act in relation to the Finance Documents through its personnel andagents.

 

## **27.7**                     Majority Lenders’ instructions

(a)                                      Unlessa contrary indication appears in a Finance Document, the Agent shall (a) act inaccordance with any instructions given to it by the Majority Lenders (or, if soinstructed by the Majority Lenders, refrain from acting or exercising anyright, power, authority or discretion vested in it as Agent) and (b) not beliable for any act (or omission) if it acts (or refrains from taking anyaction) in accordance with such an instruction of the Majority Lenders.

 

(b)                                     Unlessa contrary indication appears in a Finance Document, any instructions given bythe Majority Lenders will be binding on all the Lenders and the Arrangers.

 

(c)                                      TheAgent may refrain from acting in accordance with the instructions of theMajority Lenders (or, if appropriate, the Lenders) until it has received suchsecurity as it may require for any cost, loss or liability (together with anyassociated VAT) which it may incur in complying with the instructions.

 

(d)                                     Inthe absence of instructions from the Majority Lenders, (or, if appropriate, theLenders) the Agent may act (or refrain from taking action) as it considers tobe in the best interest of the Lenders.

 

(e)                                      TheAgent is not authorised to act on behalf of a Lender (without first obtainingthat Lender’s consent) in any legal or arbitration proceedings relating to anyFinance Document.

 

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## **27.8**                     Responsibility for documentation

Neither the Agent nor any Arranger nor any AncillaryLender:

 

(a)                                      isresponsible for the adequacy, accuracy and/or completeness of any information(whether oral or written) supplied by the Agent, any Arranger, any AncillaryLender, an Obligor or any other person given in or in connection with anyFinance Document or any Information Memorandum; or

 

(b)                                     isresponsible for the legality, validity, effectiveness, adequacy orenforceability of any Finance Document or any other agreement, arrangement ordocument entered into, made or executed in anticipation of or in connectionwith any Finance Document.

 

## **27.9**                     Exclusion of liability

(a)                                      Withoutlimiting paragraph (b) below, neither the Agent nor any Ancillary Lender willbe liable for any action taken by it under or in connection with any FinanceDocument, unless directly caused by its gross negligence or wilful misconduct.

 

(b)                                     NoParty may take any proceedings against any officer, employee or agent of theAgent or any Ancillary Lender in respect of any claim it might have against theAgent or any Ancillary Lender or in respect of any act or omission of any kindby that officer, employee or agent in relation to any Finance Document and anyofficer, employee or agent of the Agent or any Ancillary Lender may rely on thisClause.  Any third party referred to inthis paragraph (b) may enjoy the benefit of and enforce the terms of thisparagraph in accordance with the provisions of the Contracts (Rights of ThirdParties) Act 1999.

 

(c)                                      TheAgent will not be liable for any delay (or any related consequences) increditing an account with an amount required under the Finance Documents to bepaid by the Agent if the Agent has taken all necessary steps as soon asreasonably practicable to comply with the regulations or operating proceduresof any recognised clearing or settlement system used by the Agent for thatpurpose.

 

## **27.10**               Lenders’ indemnity to the Agent

Each Lender shall (in proportion to its share of theTotal Commitments or, if the Total Commitments are then zero, to its share ofthe Total Commitments immediately prior to their reduction to zero) indemnifythe Agent, within three Business Days of demand, against any cost, loss orliability incurred by the Agent (otherwise than by reason of the Agent’s grossnegligence or wilful misconduct) in acting as Agent under the Finance Documents(unless the Agent has been reimbursed by an Obligor or the Company pursuant toa Finance Document). For the purpose of determining all or any part of theTotal Commitments for the purpose of this Clause 27.10 at any time, the amountin dollars of all Term B Dollar Facility Commitments and all Term C DollarFacility Commitments and all Term Disposal Facility Commitments shall becalculated in euro at the Agent’s Spot Rate of Exchange on the date of thisAgreement.

 

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## **27.11**               Resignation of the Agent

(a)                                      TheAgent may resign and appoint one of its Affiliates acting through an office inthe United Kingdom or in Germany as successor by giving notice to the Lendersand the Obligor’s Agent.

 

(b)                                     Alternativelythe Agent may resign by giving notice to the Lenders and the Obligor’s Agent,in which case the Majority Lenders (after consultation with the Obligor’sAgent) may appoint a successor Agent.

 

(c)                                      Ifthe Majority Lenders have not appointed a successor Agent in accordance withparagraph (b) above within 30 days after notice of resignation was given, theAgent (after consultation with the Obligor’s Agent) may appoint a successorAgent (acting through an office in the United Kingdom or Germany).

 

(d)                                     Theretiring Agent shall, at its own cost, make available to the successor Agentsuch documents and records and provide such assistance as the successor Agentmay reasonably request for the purposes of performing its functions as Agentunder the Finance Documents.

 

(e)                                      TheAgent’s resignation notice shall only take effect upon the appointment of asuccessor.

 

(f)                                        Upon the appointment of a successor, the retiring Agent shall bedischarged from any further obligation in respect of the Finance Documents butshall remain entitled to the benefit of this Clause 27.  Its successor and each of the other Partiesshall have the same rights and obligations amongst themselves as they wouldhave had if such successor had been an original Party.

 

(g)                                     Afterconsultation with the Obligor’s Agent, the Majority Lenders may, by notice tothe Agent, require it to resign in accordance with paragraph (b) above.  In this event, the Agent shall resign inaccordance with paragraph (b) above.

 

## **27.12**               Confidentiality

(a)                                      Inacting as agent for the Finance Parties, the Agent shall be regarded as actingthrough its agency division which shall be treated as a separate entity fromany other of its divisions or departments.

 

(b)                                     Ifinformation is received by another division or department of the Agent, it maybe treated as confidential to that division or department and the Agent shallnot be deemed to have notice of it.

 

(c)                                      Notwithstandingany other provision of any Finance Document to the contrary, neither the Agentnor any Arranger is obliged to disclose to any other person (i) anyconfidential information or (ii) any other information if the disclosure wouldor might in its reasonable opinion constitute a breach of any law or a breachof a fiduciary duty.

 

## **27.13**               Relationship with the Lenders

(a)                                      TheAgent may treat each Lender as a Lender, entitled to payments under thisAgreement and acting through its Facility Office unless it has received notless than 

 

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fiveBusiness Days prior notice from that Lender to the contrary in accordance withthe terms of this Agreement.

 

(b)                                     EachLender shall supply the Agent with any information required by the Agent inorder to calculate the Mandatory Cost in accordance with Schedule 4 (*MandatoryCost formulae*).

 

## **27.14**               Credit appraisal by the Lenders and the Fronting Banks

Without affecting the responsibility of any Obligorfor information supplied by it or on its behalf in connection with any FinanceDocument, each Lender and each Fronting Bank confirms to the Agent and theArrangers and each Ancillary Lender that it has been, and will continue to be,solely responsible for making its own independent appraisal and investigationof all risks arising under or in connection with any Finance Document includingbut not limited to:

 

(a)                                      thefinancial condition, status and nature of each member of the Group;

 

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

 

(c)                                      whetherthat Lender or, as the case may be, Fronting Bank has recourse, and the natureand extent of that recourse, against any Party or any of its respective assetsunder or in connection with any Finance Document, the transactions contemplatedby the Finance Documents or any other agreement, arrangement or documententered into, made or executed in anticipation of, under or in connection withany Finance Document; and

 

(d)                                     theadequacy, accuracy and/or completeness of the Information Memorandum and anyother information provided by the Agent, any Party or by any other person underor in connection with any Finance Document, the transactions contemplated bythe Finance Documents or any other agreement, arrangement or document enteredinto, made or executed in anticipation of, under or in connection with anyFinance Document.

 

## **27.15**               Reference Banks

If a Reference Bank (or, if a Reference Bank is not aLender, the Lender of which it is an Affiliate) ceases to be a Lender, theAgent shall (in consultation with the Obligor’s Agent) appoint another Lenderor an Affiliate of a Lender to replace that Reference Bank.

 

## **27.16**               Obligor’s Agent

Each Obligor irrevocably authorises the Obligor’sAgent to act on its behalf as its agent in relation to the Finance Documentsand irrevocably authorises:

 

(a)                                      theObligor’s Agent on its behalf to supply all information concerning itself, itsfinancial condition and otherwise to the relevant persons contemplated underthis Agreement and to give all notices and instructions (including, in the caseof a Borrower (and without limitation), Utilisation Requests and SelectionNotices) on its behalf under the Finance Documents without further reference toor the consent of such Obligor; and

 

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(b)                                     eachFinance Party to give any notice, demand or other communication to be given toor served on such Obligor pursuant to the Finance Documents to the Obligor’sAgent on its behalf;

 

and in each such case such Obligor will be boundthereby as though such Obligor itself had supplied such information, given suchnotice and instructions or received any such notice, demand or othercommunication.

 

## **27.17**               Reliance, Priority and Engagement Letters

Each Finance Party confirms that each of the Arrangersand the Agent and the Security Trustee has authority to accept on its behalfthe terms of any Reliance Letter, Priority Letter or engagement lettersrelating to the Reports or any reports or letters provided by accountants inconnection with the Finance Documents or the transactions contemplated thereinand to bind it in respect of such Reports, reports or letters and to sign suchletters on its behalf and further confirms that it accepts the terms andqualifications set out in such letters.

 

# **28.**                           THELENDERS AND THE FRONTING BANKS

## **28.1**                     Lenders’ Indemnity

If any Borrower fails to comply with its obligationsunder Clause 8.2  (*Borrowers’ Indemnity to Fronting Banks*)the Agent shall:

 

(a)                                      inrespect of a Letter of Credit, make demand on each Lender for its share of thatL/C Amount and, subject to Clause 28.2 (*Direct Participation*)),  each Lender shall indemnify each Fronting Bankfor that Lender’s L/C Proportion of each L/C Amount; and

 

(b)                                     inrespect of a Bank Guarantee, make demand on each Lender for its share of thatGuarantee Amount and, subject to Clause 28.2 (*Direct Participation*)),  each Lender shall indemnify each FrontingBank for that Lender’s Guarantee Proportion of each Guarantee Amount.

 

## **28.2**                     Direct Participation

(a)                                      Ifany Lender is not permitted (by its constitutional documents or any applicablelaw) to comply with Clause 28.1 (*Lenders’ Indemnity*) then that Lender willnot be obliged to comply with Clause 28.1 (*Lenders’ Indemnity*) and shall instead bedeemed to have taken:

 

(i)                        in respect of a Letter of Credit, on the date such Letter of Creditis issued (or if later, on the date that L/C Proportion is transferred orassigned to such Lender in accordance with the terms of this Agreement), anundivided interest and participation in that Letter of Credit in an amountequal to that Lender’s L/C Proportion of that Letter of Credit; and

 

(ii)                     in respect of a Bank Guarantee, on the date such Bank Guarantee isissued (or if later, on the date that Guarantee Proportion is transferred orassigned to such Lender in accordance with the terms of this Agreement), anundivided interest and participation in that Bank Guarantee in an amount equalto that Lender’s Guarantee Proportion of that Bank Guarantee.

 

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(b)                                     Onreceipt of demand by the Agent in accordance with Clause 28.1 (*Lenders’Indemnity*), each such Lender shall pay to the Agent (for the accountof the Fronting Bank):

 

(i)                        in respect of a Letter of Credit, its L/C Proportion of any L/CAmount; or

 

(ii)                     in respect of a Bank Guarantee, its Guarantee Proportion of anyGuarantee Amount.

 

## **28.3**                     Obligations not Discharged

Neither the obligations of each Lender in this Clause28 nor the rights, powers and remedies conferred upon any Fronting Bank by thisAgreement or by law shall be discharged, impaired or otherwise affected by:

 

(a)                                      thewinding-up, dissolution, administration or re-organisation of the relevantFronting Bank, any Borrower or any other person or any change in its status,function, control or ownership;

 

(b)                                     anyof the obligations of the relevant Fronting Bank, any Borrower or any otherperson under this Agreement, under a Letter of Credit, under a Bank Guaranteeor under any other security taken in respect of its obligations under thisAgreement or under a Letter of Credit or Bank Guarantee being or becomingillegal, invalid, unenforceable or ineffective in any respect;

 

(c)                                      timeor other indulgence being granted or agreed to be granted to the relevantFronting Bank, the relevant Borrower or any other person in respect of itsobligations under this Agreement, under a Letter of Credit, under a BankGuarantee or under any other security;

 

(d)                                     anyamendment to, or any variation, waiver or release of, any obligation of therelevant Fronting Bank, the relevant Borrower or any other person under thisAgreement, under a Letter of Credit, under a Bank Guarantee or under any othersecurity; and

 

(e)                                      anyother act, event or omission which, but for this Clause 28 might operate todischarge, impair or otherwise affect any of the obligations of each Lender inthis Agreement contained or any of the rights, powers or remedies conferred uponany Fronting Bank by this Agreement or by law.

 

The obligations of each Lender in this Agreementcontained shall be in addition to and independent of every other security whichany Fronting Bank may at any time hold in respect of any Letter of Credit orBank Guarantee.

 

## **28.4**                     Settlement Conditional

Any settlement or discharge between a Lender and aFronting Bank shall be conditional upon no security or payment to any FrontingBank by a Lender or any other person on behalf of a Lender being avoided or reducedby virtue of any laws relating to bankruptcy, insolvency, liquidation orsimilar laws of general application and, if any such security or payment is soavoided or reduced, such Fronting Bank shall be entitled to recover the valueor amount of 

 

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such security or payment from such Lender subsequentlyas if such settlement or discharge had not occurred.

 

## **28.5**                     Exercise of Rights

No Fronting Bank shall be obliged before exercisingany of the rights, powers or remedies conferred upon them in respect of anyLender by this Agreement or by law:

 

(a)                                      totake any action or obtain judgment in any court against any Obligor;

 

(b)                                     tomake or file any claim or proof in a winding-up or dissolution of any Obligor;or

 

(c)                                      toenforce or seek to enforce any other security taken in respect of any of theobligations of the Obligors under this Agreement.

 

## **28.6**                     Beneficiary a Lender

Where the beneficiary of any Letter of Credit or BankGuarantee (the “**Beneficiary**”) is also a Lender (the “**Indemnifying Bank**”) then theBeneficiary in its capacity as such shall be treated as a separate entity fromsuch Indemnifying Bank for all purposes of the Finance Documents.

 

# **29.**                           CONDUCT OF BUSINESS BY THE FINANCEPARTIES

No provision of this Agreement will:

 

(a)                                      interferewith the right of any Finance Party to arrange its affairs (tax or otherwise)in whatever manner it thinks fit;

 

(b)                                     obligeany Finance Party to investigate or claim any credit, relief, remission orrepayment available to it or the extent, order and manner of any claim; or

 

(c)                                      obligeany Finance Party to disclose any information relating to its affairs (tax orotherwise) or any computations in respect of Tax.

 

# **30.**                           SHARINGAMONG THE LENDERS

## ** **

## **30.1**                     Payments to Lenders

If a Lender (a “**Recovering Lender**”) receives or recoversany amount from an Obligor other than in accordance with Clause 31 (*Paymentmechanics*) and applies that amount to a payment due under theFinance Documents then:

 

(a)                                      theRecovering Lender shall, within three Business Days, notify details of thereceipt or recovery, to the Agent;

 

(b)                                     theAgent shall determine whether the receipt or recovery is in excess of theamount the Recovering Lender would have been paid had the receipt or recoverybeen received or made by the Agent and distributed in accordance with Clause 31(*Paymentmechanics*), without taking account of any Tax which would be imposedon the Agent in relation to the receipt, recovery or distribution; and

 

(c)                                      theRecovering Lender shall, within three Business Days of demand by the Agent, payto the Agent an amount (the “**Sharing Payment**”) equal to such receipt orrecovery less any amount which the Agent determines may be retained by theRecovering 

 

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Lender as its share of any payment to be made, inaccordance with Clause 31.5 (*Partial payments*).

 

## **30.2**                     Redistribution of payments

The Agent shall treat the Sharing Payment as if it hadbeen paid by the relevant Obligor and distribute it between the Finance Parties(other than the Recovering Lender) in accordance with Clause 31.5 (*Partialpayments*).

 

## **30.3**                     Recovering Lender’s rights

(a)                                      Ona distribution by the Agent under Clause 30.2 (*Redistribution of payments*),the Recovering Lender will be subrogated to the rights of the Finance Partieswhich have shared in the redistribution.

 

(b)                                     Ifand to the extent that the Recovering Lender is not able to rely on its rightsunder paragraph (a) above, the relevant Obligor shall be liable to theRecovering Lender for a debt equal to the Sharing Payment which is immediatelydue and payable.

 

## **30.4**                     Reversal of redistribution

If any part of the Sharing Payment received orrecovered by a Recovering Lender becomes repayable and is repaid by thatRecovering Lender, then:

 

(a)                                      eachLender which has received a share of the relevant Sharing Payment pursuant toClause 30.2 (*Redistribution of payments*) shall, upon request of theAgent, pay to the Agent for account of that Recovering Lender an amount equalto its share of the  Sharing Payment(together with such amount as is necessary to reimburse that Recovering Lenderfor its proportion of any interest on the Sharing Payment which that RecoveringLender is required to pay); and

 

(b)                                     thatRecovering Lender’s rights of subrogation in respect of any reimbursement shallbe cancelled and the relevant Obligor will be liable to the reimbursing Lenderfor the amount so reimbursed.

 

## **30.5**                     Exceptions

(a)                                      ThisClause 30 shall not apply to the extent that the Recovering Lender would not,after making any payment pursuant to this Clause, have a valid and enforceableclaim against the relevant Obligor.

 

(b)                                     ARecovering Lender is not obliged to share with any other Lender any amountwhich the Recovering Lender has received or recovered as a result of takinglegal or arbitration proceedings, if:

 

(i)                        it notified the other Lenders of the legal or arbitrationproceedings; and

 

(ii)                     the other Lender had an opportunity to participate in those legal orarbitration proceedings but did not do so as soon as reasonably practicablehaving received notice or did not take separate legal or arbitrationproceedings.

 

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**SECTION 11**

 

**ADMINISTRATION**

 

# **31.**                           PAYMENT MECHANICS

## ** **

## **31.1**                     Payments to the Agent

(a)                                      Oneach date on which an Obligor or a Lender is required to make a payment under aFinance Document, that Obligor or Lender shall make the same available to theAgent (unless a contrary indication appears in a Finance Document) for value onthe due date at the time and in such funds specified by the Agent as beingcustomary at the time for settlement of transactions in the relevant currencyin the place of payment.

 

(b)                                     Paymentshall be made to such account in the principal financial centre of the countryof that currency (or, in relation to euro, in a principal financial centre in aParticipating Member State or London) with such bank as the Agent specifies.

 

## **31.2**                     Distributions by the Agent

Each payment received by the Agent under the FinanceDocuments for another Party shall, subject to Clause 31.3 (*Distributions to an Obligor*)and Clause 31.4 (*Clawback*) be made available by the Agent as soon aspracticable after receipt to the Party entitled to receive payment inaccordance with this Agreement (in the case of a Lender, for the account of itsFacility Office), to such account as that Party may notify to the Agent by notless than five Business Days’ notice with a bank in the principal financialcentre of the country of that currency (or, in relation to euro, in theprincipal financial centre of a Participating Member State or London).

 

## **31.3**                     Distributions to an Obligor

The Agent may (with the consent of the Obligor or inaccordance with Clause 32 (*Set-off*)) apply any amount received by itfor that Obligor in or towards payment (on the date and in the currency andfunds of receipt) of any amount due from that Obligor under the FinanceDocuments or in or towards purchase of any amount of any currency to be soapplied.

 

## **31.4**                     Clawback

(a)                                      Wherea 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 intoor perform any related exchange contract) until it has been able to establishto its satisfaction that it has actually received that sum.

 

(b)                                     Ifthe Agent pays an amount to another Party and it proves to be the case that theAgent 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 shallon demand refund the same to the Agent together with interest on that amountfrom the date of payment to the date of receipt by the Agent, calculated by theAgent to reflect its cost of funds.

 

## **31.5**                     Partial payments

(a)                                      Ifthe Agent receives a payment that is insufficient to discharge all the amountsthen due and payable by an Obligor under the Finance Documents, the Agent shallapply 

 

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that payment towards the obligations of that Obligorunder the Finance Documents in the following order:

 

(i)                        **first**, in or towards payment pro rata of any unpaid fees, costs andexpenses of the Agent under the Finance Documents;

 

(ii)                     **secondly**, in or towards payment of any demand made by a Fronting Bank inrespect of a payment made or to be made by it under a Letter of Credit or aBank Guarantee due but unpaid;

 

(iii)                  **thirdly**, in or towards payment pro rata of any accrued interest, commissionor Fronting Bank fees due but unpaid under this Agreement;

 

(iv)                 **fourthly**, in or towards payment pro rata of any Outstandings due but unpaidunder this Agreement and the Ancillary Documents; and

 

(v)                    **fifthly**, in or towards payment pro rata of any other sum due but unpaidunder the Finance Documents.

 

(b)                                     TheAgent shall, if so directed by the Majority Lenders, vary the order set out inparagraphs (a)(ii) to (v) above.

 

(c)                                      Paragraphs(a) and (b) above will override any appropriation made by an Obligor.

 

## **31.6**                     No set-off by Obligors

All payments to be made by an Obligor under theFinance Documents shall be calculated and be made without (and free and clearof any deduction for) set-off or counterclaim.

 

## **31.7**                     Business Days

(a)                                      Anypayment which is due to be made on a day that is not a Business Day shall bemade on the next Business Day in the same calendar month (if there is one) orthe preceding Business Day (if there is not).

 

(b)                                     Duringany extension of the due date for payment of any principal or an Unpaid Sumunder this Agreement interest is payable on the principal at the rate payableon the original due date.

 

## **31.8**                     Currency of account

(a)                                      Subjectto paragraphs (b) to (f) below, euro is the currency of account and payment forany sum due from an Obligor under any Finance Document.

 

(b)                                     Arepayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall bemade in the currency in which that Loan or Unpaid Sum is denominated on its duedate.

 

(c)                                      Eachpayment in respect of a Letter of Credit or a Bank Guarantee (including anyCash Collateral in respect of a Letter of Credit or a Bank Guarantee) shall bemade in the currency in which that Letter of Credit or, as the case may be,Bank Guarantee is denominated.

 

(d)                                     Eachpayment of interest shall be made in the currency in which the sum in respectof which the interest is payable was denominated when that interest accrued.

 

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(e)                                      Eachpayment in respect of costs, expenses or Taxes shall be made in the currency inwhich the costs, expenses or Taxes are incurred.

 

(f)                                        Any amount expressed to be payable in a currency other than euroshall be paid in that other currency.

 

## **31.9**                     Change of currency

(a)                                      Unlessotherwise prohibited by law, if more than one currency or currency unit are atthe same time recognised by the central bank of any country as the lawfulcurrency of that country, then:

 

(i)                        any reference in the Finance Documents to, and any obligationsarising under the Finance Documents in, the currency of that country shall betranslated into, or paid in, the currency or currency unit of that countrydesignated by the Agent (after consultation with the Obligor’s Agent); and

 

(ii)                     any translation from one currency or currency unit to another shallbe at the official rate of exchange recognised by the central bank for theconversion of that currency or currency unit into the other, rounded up or downby the Agent (acting reasonably).

 

(b)                                     Ifa change in any currency of a country occurs, this Agreement will, to theextent the Agent (acting reasonably and after consultation with the Obligor’sAgent) specifies to be necessary, be amended to comply with any generallyaccepted conventions and market practice in the Relevant Interbank Market andotherwise to reflect the change in currency.

 

# **32.**                           SET-OFF

 

After an Event of Default has occurred and for so longas it is continuing a Finance Party may set off any matured obligation due froman Obligor or the Obligor’s Agent under the Finance Documents (to the extentbeneficially owned by that Finance Party) against any matured obligation owedby that Finance Party to that Obligor or the Obligor’s Agent (as the case maybe), regardless of the place of payment, booking branch or currency of eitherobligation.  If the obligations are indifferent currencies, the Finance Party may convert either obligation at a marketrate of exchange in its usual course of business for the purpose of theset-off.  If a Finance Party doesexercise its right of set-off pursuant to this Clause 32 it shall give writtennotice (through the Agent) of such action to the Obligor’s Agent or therelevant Obligor (as the case may be) as soon as is reasonably practicablethereafter.

 

# **33.**                           NOTICES

 

## **33.1**                     Communications in writing

Any communication to be made under or in connectionwith the Finance Documents shall be made in writing and, unless otherwisestated, may be made by fax, letter or telex.

 

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## **33.2**                     Addresses

The address, fax number and telex number (and thedepartment or officer, if any, for whose attention the communication is to bemade) of each Party for any communication or document to be made or deliveredunder or in connection with the Finance Documents is:

 

(a)                                      inthe case of the Company, that identified with its name below;

 

(b)                                     inthe case of each Lender, each Fronting Bank or any Obligor, that notified inwriting to the Agent on or prior to the date on which it becomes a Party; and

 

(c)                                      inthe case of the Agent or the Security Trustee, that identified with its namebelow,

 

or any substitute address, fax number, telex number ordepartment or officer as the Party may notify to the Agent (or the Agent maynotify to the other Parties, if a change is made by the Agent) by not less thanfive Business Days’ notice.

 

## **33.3**                     Delivery

(a)                                      Anycommunication or document made or delivered by one person to another under orin connection with the Finance Documents will only be effective:

 

(i)                        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 addressor five Business Days after being deposited in the post postage prepaid in anenvelope addressed to it at that address; or

 

(iii)                  if by way of telex, when despatched, but only if, at the time oftransmission, the correct answerback appears at the start and at the end of thesender’s copy of the notice;

 

and, if a particular department or officer isspecified as part of its address details provided under Clause 33.2 (*Addresses*),if addressed to that department or officer.

 

(b)                                     Anycommunication or document to be made or delivered to the Agent or the SecurityTrustee will be effective only when actually received by the Agent or, as thecase may be, the Security Trustee and then only if it is expressly marked forthe attention of the department or officer identified with the Agent’s or, asthe case may be, the Security Trustee’s signature below (or any substitutedepartment or officer as the Agent or the Security Trustee shall specify forthis purpose).

 

(c)                                      Allnotices from or to an Obligor shall be sent through the Agent.

 

(d)                                     Anycommunication or document made or delivered to the Obligor’s Agent inaccordance with this Clause will be deemed to have been made or delivered toeach of the Obligors.

 

## **33.4**                     Notification of address, fax number and telex number

Promptly upon receipt of notification of an address,fax number and telex number or change of address, fax number or telex numberpursuant to Clause 33.2 (*Addresses*) or changing its own address,fax number or telex number, the Agent shall notify the other Parties.

 

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## **33.5**                     English language

(a)                                      Anynotice given under or in connection with any Finance Document must be inEnglish.

 

(b)                                     Allother documents provided under or in connection with any Finance Document mustbe:

 

(i)                        in English; or

 

(ii)                     if not in English, and if so required by the Agent, accompanied by acertified English translation and, in this case, the English translation willprevail unless the document is a constitutional, statutory or other officialdocument.

 

# **34.**                           CALCULATIONSAND CERTIFICATES

 

## **34.1**                     Accounts

In any litigation or arbitration proceedings arisingout of or in connection with a Finance Document, the entries made in theaccounts maintained by a Finance Party are *prima facie* evidence of the matters towhich they relate.

 

## **34.2**                     Certificates and Determinations

Any certification or determination by a Finance Partyof a rate or amount under any Finance Document and by a Fronting Bank as to theamount paid out by that Fronting Bank in respect of any Letter of Credit orBank Guarantee is, in the absence of manifest error, conclusive evidence of thematters to which it relates.

 

## **34.3**                     Day count convention

Any interest, commission or fee accruing under aFinance Document will accrue from day to day and is calculated on the basis ofthe actual number of days elapsed and a year of 360 days or, in any case wherethe practice in the Relevant Interbank Market differs, in accordance with thatmarket practice.

 

# **35.**                           PARTIALINVALIDITY

 

If, at any time, any provision of the FinanceDocuments is or becomes illegal, invalid or unenforceable in any respect underany law of any jurisdiction, neither the legality, validity or enforceabilityof the remaining provisions nor the legality, validity or enforceability ofsuch provision under the law of any other jurisdiction will in any way beaffected or impaired.

 

# **36.**                           REMEDIES AND WAIVERS

 

No failure to exercise, nor any delay in exercising,on the part of any Finance Party, any right or remedy under the FinanceDocuments shall operate as a waiver, nor shall any single or partial exerciseof any right or remedy prevent any further or other exercise or the exercise ofany other right or remedy.  The rightsand remedies provided in this Agreement are cumulative and not exclusive of anyrights or remedies provided by law.

 

# **37.**                           AMENDMENTSAND WAIVERS

 

## **37.1**                     Required consents

(a)                                      Subjectto Clause 37.2 (*Exceptions*) and Clause 37.5 (*Amendment to correct Manifest Error*)any term of the Finance Documents may be amended or waived only with the 

 

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consent of the Majority Lenders and the Obligors andany such amendment or waiver will be binding on all Parties.

 

(b)                                     TheAgent may effect, on behalf of any Finance Party, any amendment or waiverpermitted by this Clause 37.

 

## **37.2**                     Exceptions

(a)                                      Anamendment or waiver that has the effect of changing or which relates to:

 

(i)                        the definition of “Majority Lenders” in Clause 1.1 (*Definitions*);

 

(ii)                     an extension to the date of payment of any amount under the FinanceDocuments;

 

(iii)                  a reduction in the Margin, the L/C Commission Rate, the GuaranteeCommission Rate or the amount of any payment of principal, interest, fees orcommission payable;

 

(iv)                 anincrease in Commitment;

 

(v)                    a change to the Borrowers or Guarantors other than in accordancewith Clause 26 (*Changes to the Obligors*);

 

(vi)                 anyprovision which expressly requires the consent of all the Lenders; or

 

(vii)              Clause2.2 (*Lenders’and Fronting Banks’ rights and obligations*), Clause 25 (*Changes tothe Lenders*) or this Clause 37,

 

shall not be made without the prior consent of all theLenders.

 

(b)                                     Anamendment or waiver which relates to the rights or obligations of the Agent,the Security Trustee or any Arranger or any Ancillary Lender may not beeffected without the consent of the Agent, the Security Trustee or, as the casemay be, that Arranger or that Ancillary Lender.

 

(c)                                      Anamendment or waiver which has the effect of changing or which relates to theright of a Lender which has provided a Term B Euro Facility Loan or a Term BDollar Facility Loan or a Term C Euro Facility Loan or a Term C Dollar FacilityLoan (as the case may be) to elect that any such Loan shall not be mandatorilyprepaid as set out in paragraph (d) of Clause 9.8 (*Application of Prepayments*)may not be effected without the consent of Majority Lenders determined solelyby reference to the Term B Euro Facility Commitments, the Term B DollarFacility Commitments, the Term C Euro Facility Commitments or the Term C DollarFacility Commitments (as the case may be).

 

## **37.3**                     Amendments by Security Trustee

Unless the provisions of any Finance Documentexpressly provide otherwise, the Security Trustee may, if authorised by theMajority Lenders, amend the terms of, waive any of the requirements of, orgrant consents under, any of the Security Documents, any such amendment, waiveror consent being binding on all the parties to this Agreement **providedthat**:

 

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(a)                                      theprior consent of all of the Lenders is required to authorise any amendment ofany Security Document which would affect the nature or the scope of theTransaction Security or the manner in which proceeds of enforcement aredistributed; and

 

(b)                                     nowaiver or amendment may impose any new or additional obligations on any personwithout the consent of that person.

 

## **37.4**                     Amendments by Obligor’s Agent

The Obligor’s Agent (acting on behalf of each of theObligors) may agree any amendment to or modification of the provisions of anyof the Finance Documents or any schedule thereto, or grant any waiver orconsent in relation thereto and the Obligors will be bound by any suchamendment or modification.

 

## **37.5**                     Amendment to correct ManifestError

The Agent may agree with the Obligor’s Agent (actingon behalf of each of the Obligors) any amendment to or the modification of theprovisions of any of the Finance Documents or any schedule thereto, which isnecessary to correct a manifest error and the Obligors will be bound by anysuch amendment or modification.

 

# **38.**                           COUNTERPARTS

 

Each Finance Document may be executed in any number ofcounterparts, and this has the same effect as if the signatures on thecounterparts were on a single copy of the Finance Document.

 

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**SECTION 12**

 

**GOVERNING LAW AND ENFORCEMENT**

 

# **39.**                           GOVERNINGLAW

 

This Agreement is governed by English law.

 

# **40.**                           ENFORCEMENT

 

## **40.1**                     Jurisdiction of English courts

(a)                                      Thecourts of England have exclusive jurisdiction to settle any dispute arising outof or in connection with this Agreement (including a dispute regarding theexistence, validity or termination of this Agreement) (a “**Dispute**”).

 

(b)                                     TheParties agree that the courts of England are the most appropriate  and convenient courts to settle Disputes andaccordingly no Party will argue to the contrary.

 

(c)                                      ThisClause 40.1 is for the benefit of the Finance Parties only.  As a result, no Finance Party shall beprevented from taking proceedings relating to a Dispute in any other courtswith jurisdiction.  To the extent allowedby law, the Finance Parties may take concurrent proceedings in any number ofjurisdictions.

 

## **40.2**                     Service of process

Without prejudice to any other mode of service allowedunder any relevant law, the Company and each Obligor (other than an Obligor incorporatedin England and Wales):

 

(a)                                      irrevocablyappoints Messer UK Limited as its agent for service of process in relation toany proceedings before the English courts in connection with any FinanceDocument; and

 

(b)                                     agreesthat failure by a process agent to notify the Company or (as the case may be)the relevant Obligor of the process will not invalidate the proceedingsconcerned.

 

If theappointment of Messer UK Limited by any Obligor ceases to be effective, therelevant Obligor shall immediately appoint another person in England to acceptservice of process on its behalf in England in connection with any FinanceDocument.  If an Obligor fails to do so(and such failure continues for a period of not less than fourteen days), theAgent shall be entitled to appoint such a person by notice to such Obligor.

 

# **41.**                           WAIVER OF JURY TRIAL

 

Each of the Finance Parties irrevocably waives trialby jury in any action or proceeding with respect to any Finance Document.

 

**This Agreement has been entered into on the date stated at the beginningof this Agreement.**

 

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**SCHEDULE 1**THE CLOSING PARTIES

 

**Part IThe Initial Obligors**

** **
| **Name of Initial Borrower**      |   | **Jurisdiction  of incorporation and registration  number (or equivalent, if any)**                                                                           |
|-----------------------------------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------|
| Messer Griesheim GmbH             |   | Germany, Frankfurt, HRB7812 registered in the *Handelsregister*  (commercial register) of the *Amtsgericht*(local court) of Frankfurt  am Main, under HRB7812 |
|                              |   |                                                                                                                                                          |
| Messer Griesheim Industries, Inc. |   | U.S.A., 0815454, State of Delaware                                                                                                                            |
|                              |   |                                                                                                                                                          |
| Messer Finance S.A.               |   | Luxembourg                                                                                                                                                    |

 
| **Name of Initial Guarantor**       |   | **Jurisdiction  of incorporation and registration  number (or equivalent, if any)**                                                                               |
|-------------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| Messer Griesheim GmbH               |   | Germany, Frankfurt, HRB7812 registered with the *Amtsgericht*(local court) of Frankfurt am Main in the *Handelsregister*  (commercial register) under HRB7812     |
|                                |   |                                                                                                                                                              |
| Messer Griesheim Industries, Inc.   |   | U.S.A., 0815454, State of Delaware                                                                                                                                |
|                                |   |                                                                                                                                                              |
| Messer Finance S.A.                 |   | Luxembourg                                                                                                                                                        |
|                                |   |                                                                                                                                                              |
| Messer UK Limited                   |   | England, 232592                                                                                                                                                   |
|                                |   |                                                                                                                                                              |
| Messer Griesheim Industriegase GmbH |   | Germany, Leipzig, HRB1854 registered in the *Handelsregister*  (commercial register) of the *Amtsgericht* (local court) of Leipzig,  under HRB1854                |
|                                |   |                                                                                                                                                              |
| Messer Medical GmbH                 |   | Germany, Krefeld, HRB5807 registered in the *Handelsregister*  (commercial register) of the *Amtsgericht* (local court) of Krefeld  under HRB5807                 |
|                                |   |                                                                                                                                                              |
| Messer International GmbH           |   | Germany, Frankfurt, HRB 48453 registered in the *Handelsregister*  (commercial register) of the *Amtsgericht* (local court) of Frankfurt  am Main under HRB 48431 |
|                                |   |                                                                                                                                                              |
| Messer France S.A.                  |   | France, 300 560 588                                                                                                                                               |

 

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| Messer Nederland B.V. |   | The Netherlands, seat (statutaire zetel) in Moerdijk  and registered number 20069636 |
|-----------------------|--------|--------------------------------------------------------------------------------------|
|                  |   |                                                                                 |
| MG Generon, Inc.      |   | U.S.A., 2574 231, State of Delaware                                                  |
|                  |   |                                                                                 |
| GVP, Inc.             |   | U.S.A., 2638386, State of Delaware                                                   |
|                  |   |                                                                                 |
| Messer Austria GmbH   |   | Austria, FN 111741a                                                                  |

 

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**Part IIThe Lenders**

** **
| **Name of Lender**                      |   | **Term  Disposal  Facility  Commitment  ($)** |   | **Term  A Facility  Commitment  (EUR)** |   | **Term  B Dollar  Facility  Commitment   ($)** |   | **Term  B Euro  Facility  Commitment  (EUR)** |   | **Term  C Dollar  Facility  Commitment  ($)** |   | **Term  C Euro  Facility  Commitment  (EUR)** |   | **Revolving  Facility I  Commitment   (EUR)** |   | **Revolving  Facility II  Commitment  (EUR)** |   |
|-----------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------|--------|------------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|
| Goldman Sachs Credit Partners, L.P.     |   | 0                                             |   | 0                                       |   | 0                                              |   | 0                                             |   | 0                                             |   | 0                                             |   | 0                                             |   | 0                                             |   |
| Goldman Sachs International Bank        |   | 9,509,339.40                                  |   | 12,682,520.81                           |   | 21,159,691.15                                  |   | 20,377,294.89                                 |   | 36,304,392.62                                 |   | 18,052,166.07                                 |   | 10,991,518.04                                 |   | 2,113,753.47                                  |   |
| Bayerische Hypo - und Vereinsbank AG    |   | 9,509,339.40                                  |   | 12,682,520.81                           |   | 21,159,691.15                                  |   | 20,377,294.89                                 |   | 36,304,392.62                                 |   | 18,052,166.07                                 |   | 10,991,518.04                                 |   | 2,113,753.47                                  |   |
| The Chase Manhattan Bank                |   | 9,509,339.40                                  |   | 12,682,520.81                           |   | 21,159,691.15                                  |   | 20,377,294.89                                 |   | 36,304,392.62                                 |   | 18,052,166.07                                 |   | 10,991,518.04                                 |   | 2,113,753.47                                  |   |
| The Royal Bank of Scotland plc          |   | 9,509,339.40                                  |   | 12,682,520.81                           |   | 21,159,691.15                                  |   | 20,377,294.89                                 |   | 36,304,392.62                                 |   | 18,052,166.07                                 |   | 10,991,518.04                                 |   | 2,113,753.47                                  |   |
| Bayerische Landesbank                   |   | 7,473,664.40                                  |   | 11,600,529.61                           |   | 1,831,794.16                                   |   | 4,118,188.01                                  |   | 781,021.12                                    |   | 1,991,424.25                                  |   | 10,053,792.33                                 |   | 1,933,421.60                                  |   |
| Commerzbank Aktiengesellschaft          |   | 7,473,664.40                                  |   | 11,600,529.61                           |   | 1,831,794.16                                   |   | 4,118,188.01                                  |   | 781,021.12                                    |   | 1,991,424.25                                  |   | 10,053,792.33                                 |   | 1,933,421.60                                  |   |
| DG Bank Deutsche Genossenschaftsbank AG |   | 7,473,664.40                                  |   | 11,600,529.61                           |   | 1,831,794.16                                   |   | 4,118,188.01                                  |   | 781,021.12                                    |   | 1,991,424.25                                  |   | 10,053,792.33                                 |   | 1,933,421.60                                  |   |
| Dresdner Bank AG                        |   | 3,645,689.95                                  |   | 5,658,794.93                            |   | 893,558.13                                     |   | 2,008,872.20                                  |   | 380,985.91                                    |   | 971,426.46                                    |   | 4,904,288.94                                  |   | 943,132.49                                    |   |
| Landesbank Hessen-Thueringen            |   | 6,379,957.42                                  |   | 9,902,891.13                            |   | 1,563,726.72                                   |   | 3,515,526.35                                  |   | 666,725.35                                    |   | 1,699,996.31                                  |   | 8,582,505.65                                  |   | 1,650,481.86                                  |   |

 

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| **Name of Lender**                              |   | **Term  Disposal  Facility  Commitment  ($)** |   | **Term  A Facility  Commitment  (EUR)** |   | **Term  B Dollar  Facility  Commitment   ($)** |   | **Term  B Euro  Facility  Commitment  (EUR)** |   | **Term  C Dollar  Facility  Commitment  ($)** |   | **Term  C Euro  Facility  Commitment  (EUR)** |   | **Revolving  Facility I  Commitment   (EUR)** |   | **Revolving  Facility II  Commitment  (EUR)** |   |
|-------------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------|--------|------------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|
| Girozentrale Helaba                             |   |                                          |   |                                    |   |                                           |   |                                          |   |                                          |   |                                          |   |                                          |   |                                          |   |
| Abbey National Treasury Services Plc            |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| Bank of America, N.A.                           |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| Bank of Scotland - Zweigniederlassung Frankfurt |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| IntesaBCI S.P.A. Frankfurt Am Main Branch       |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| BHF - Bank Aktiengesellschaft                   |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| Banca Nazionale del Lavoro S.p.A.,              |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| Crédit Industriel et Commercial            |   | 4,010,258.95                                  |   | 6,224,674.42                            |   | 982,913.94                                     |   | 2,209,759.42                                  |   | 419,084.51                                    |   | 1,068,569.11                                  |   | 5,394,717.83                                  |   | 1,037,445.74                                  |   |
| Credit Mutuel - B.E.C.M.                        |   | 1,822,844.98                                  |   | 2,829,397.47                            |   | 446,779.06                                     |   | 1,004,436.10                                  |   | 190,492.46                                    |   | 485,713.23                                    |   | 2,452,144.47                                  |   | 471,566.24                                    |   |
| Banque Scalbert Dupont                          |   | 911,422.49                                    |   | 1,414,698.73                            |   | 223,389.53                                     |   | 502,218.05                                    |   | 95,246.48                                     |   | 242,856.62                                    |   | 1,226,072.24                                  |   | 235,783.12                                    |   |
| Credit Agricole Indosuez                        |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |

 

190

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| **Name of Lender**                                                                                                                         |   | **Term  Disposal  Facility  Commitment  ($)** |   | **Term  A Facility  Commitment  (EUR)** |   | **Term  B Dollar  Facility  Commitment   ($)** |   | **Term  B Euro  Facility  Commitment  (EUR)** |   | **Term  C Dollar  Facility  Commitment  ($)** |   | **Term  C Euro  Facility  Commitment  (EUR)** |   | **Revolving  Facility I  Commitment   (EUR)** |   | **Revolving  Facility II  Commitment  (EUR)** |   |
|--------------------------------------------------------------------------------------------------------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------|--------|------------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|
| Crédit Lyonnais                                                                                                                       |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| The Fuji Bank, Limited                                                                                                                     |   | 0                                             |   | 5,234,385.31                            |   | 0                                              |   | 1,858,206.79                                  |   | 0                                             |   | 898,569.48                                    |   | 0                                             |   | 872,397.55                                    |   |
| Mizuho Bank Nederland N.V.                                                                                                                 |   | 3,372,263.21                                  |   | 0                                       |   | 826,541.27                                     |   | 0                                             |   | 352,411.97                                    |   | 0                                             |   | 4,536,467.27                                  |   | 0                                             |   |
| Industriebank von Japan (Deutschland) Aktiengesellschaft                                                                                   |   | 3,372,263.21                                  |   | 5,234,385.31                            |   | 826,541.27                                     |   | 1,858,206.79                                  |   | 352,411.97                                    |   | 898,569.48                                    |   | 4,536,467.27                                  |   | 872,397.55                                    |   |
| Landesbank Sachsen Girozentrale                                                                                                            |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| Cooperatieve Centrale Raiffeisen-Boerenleenbank b.a.  Zweigniederlassung Frankfurt am  (Rabobank International Frankfurt Branch) |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| Société Générale                                                                                                       |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| Scotia Bank Europe Plc                                                                                                                     |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| Westdeutsche Landesbank Girozentrale                                                                                                       |   | 6,744,526.41                                  |   | 10,468,770.62                           |   | 1,653,082.53                                   |   | 3,716,413.57                                  |   | 704,823.94                                    |   | 1,797,138.96                                  |   | 9,072,934.54                                  |   | 1,744,795.10                                  |   |
| First Union National Bank, London Branch                                                                                                   |   | 3,372,263.21                                  |   | 5,234,385.31                            |   | 826,541.27                                     |   | 1,858,206.79                                  |   | 352,411.97                                    |   | 898,569.48                                    |   | 4,536,467.27                                  |   | 872,397.55                                    |   |

 

191

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| **Name of Lender**                               |   | **Term  Disposal  Facility  Commitment  ($)** |   | **Term  A Facility  Commitment  (EUR)** |   | **Term  B Dollar  Facility  Commitment   ($)** |   | **Term  B Euro  Facility  Commitment  (EUR)** |   | **Term  C Dollar  Facility  Commitment  ($)** |   | **Term  C Euro  Facility  Commitment  (EUR)** |   | **Revolving  Facility I  Commitment   (EUR)** |   | **Revolving  Facility II  Commitment  (EUR)** |   |
|--------------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------|--------|------------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|-----------------------------------------------|--------|
| Ikb Deutsche Industriebank AG, London Branch     |   | 3,372,263.21                                  |   | 5,234,385.31                            |   | 826,541.27                                     |   | 1,858,206.79                                  |   | 352,411.97                                    |   | 898,569.48                                    |   | 4,536,467.27                                  |   | 872,397.55                                    |   |
| Landesbank Rheinland-Pfalz Girozentrale          |   | 3,372,263.21                                  |   | 5,234,385.31                            |   | 826,541.27                                     |   | 1,858,206.79                                  |   | 352,411.97                                    |   | 898,569.48                                    |   | 4,536,467.27                                  |   | 872,397.55                                    |   |
| Landesbank Saar Girozentrale                     |   | 3,372,263.21                                  |   | 5,234,385.31                            |   | 826,541.27                                     |   | 1,858,206.79                                  |   | 352,411.97                                    |   | 898,569.48                                    |   | 4,536,467.27                                  |   | 872,397.55                                    |   |
| Mediobanca - Banca di Credito Finanziario S.p.A. |   | 3,372,263.21                                  |   | 5,234,385.31                            |   | 826,541.27                                     |   | 1,858,206.79                                  |   | 352,411.97                                    |   | 898,569.48                                    |   | 4,536,467.27                                  |   | 872,397.55                                    |   |
| Natexis Banques Populaires                       |   | 3,372,263.21                                  |   | 5,234,385.31                            |   | 826,541.27                                     |   | 1,858,206.79                                  |   | 352,411.97                                    |   | 898,569.48                                    |   | 4,536,467.27                                  |   | 872,397.55                                    |   |
| Sanpaolo IMI S.p.A.                              |   | 3,372,263.21                                  |   | 5,234,385.31                            |   | 826,541.27                                     |   | 1,858,206.79                                  |   | 352,411.97                                    |   | 898,569.48                                    |   | 4,536,467.27                                  |   | 872,397.55                                    |   |
| Sumitomo Mitsui Banking Corporation              |   | 3,372,263.21                                  |   | 5,234,385.31                            |   | 826,541.27                                     |   | 1,858,206.79                                  |   | 352,411.97                                    |   | 898,569.48                                    |   | 4,536,467.27                                  |   | 872,397.55                                    |   |
| Total                                            |   | 198,630,000.00                                |   | 300,000,000.00                          |   | 124,000,000.00                                 |   | 170,000,000.00                                |   | 162,000,000.00                                |   | 115,000,000.00                                |   | 260,000,000.00                                |   | 50,000,000.00                                 |   |

 

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**SCHEDULE 2**CONDITIONS PRECEDENT

 

**Part IConditions precedent to initial Utilisation**

 

1.                                 **Corporate Documents**

 

(a)                                      Acopy of the constitutional documents of the Company and Newco 2 in theform required by the Agent together with a copy of the resolutions of theshareholders of the Company and/or Newco 2 adopting such changes to theconstitutive documents of the Company and/or Newco 2 as the Agent shall havereasonably required.

 

(b)                                     Acopy of a resolution of the board of directors (or the equivalent thereof) ofeach of the Company and Newco 2:

 

(i)                        approving the terms of, and the transactions contemplated by, theTransaction Documents to which it is a party and resolving that it execute theTransaction Documents to which it is a party;

 

(ii)                     authorising a specified person or persons to execute the TransactionDocuments to which it is a party on its behalf; and

 

(iii)                  authorising a specified person or persons, on its behalf, to signand/or despatch all documents and notices (including, if relevant, anyUtilisation Request and Selection Notice) to be signed and/or despatched by itunder or in connection with the Finance Documents to which it is a party.

 

(c)                                      Aspecimen of the signature of each person authorised by the resolution referredto in paragraph (b) above.

 

(d)                                     Wherethe Lenders’ relevant counsel deems such to be either necessary or desirableeither in place of or in addition to the resolution referred to in paragraph(b) above, a certificate or extract from a public commercial registry or otherevidence setting out the names and signatures of the persons authorised tosign, on behalf of each of the Company and Newco 2, each TransactionDocument to which such company is or is to be a party and any documents to bedelivered by such company pursuant to any of the Transaction Documents.

 

(e)                                      Wherethe Lenders’ relevant counsel deems such to be either necessary or desirablefor the Company and Newco 2, either a copy of a resolution signed by allthe holders of the issued shares in such company or a resolution of thesupervisory board, work council or equivalent supervisory body of such company,approving the terms of, and the transactions contemplated by, the FinanceDocuments to which that company is a party.

 

(f)                                        The constitutive documents of MGG in the form required by the Agent.

 

193

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(g)                                     Anyresolutions of the shareholders of MGG adopting such changes to theconstitutive documents of MGG as the Agent shall have reasonably required to,among other things, remove any restriction on any transfer of shares orpartnership interests (or equivalent) in MGG pursuant to any enforcement of theSecurity Documents creating security over such shares.

 

(h)                                     TheGroup Structure Chart.

 

(i)                                         A certificate of an authorised signatory of each of the Company andNewco 2 certifying that each copy document relating to it specified inthis paragraph 1 (*Corporate Documents*) of Part 1 of Schedule 2 is correct,complete and in full force and effect as at a date no earlier than the date ofthis Agreement.

 

2.                                 **Accounts and Reports**

 

(a)                                      TheBusiness Plan (together with a list of the operating and market assumptionsmade for the purpose of the Business Plan).

 

(b)                                     TheReports (other than the 2000 Outturn Report and the Projections Report referredto in paragraph (b) of the definition of Reports) either addressed to, or withReliance Letters in favour of, the Security Trustee (on behalf of the FinanceParties and the Mezzanine Finance Parties) or any Arranger on behalf of theFinance Parties and any Mezzanine Arranger on behalf of the Mezzanine FinanceParties or to the relevant Finance Parties and the relevant Mezzanine FinanceParties.

 

(c)                                      ThePriority Letter, duly executed by the parties to it.

 

(d)                                     Budget(on a quarterly basis) for 2001.

 

3.                                 **Acquisition Documents andrelated matters**

 

(a)                                      Copiesof each Acquisition Document.

 

(b)                                     Evidencethat the MGG Acquisition has completed in accordance with the terms of theAcquisition Documents and that either the Transferred Assets and TransferredLiabilities (as defined in the Singapore Separation Agreement) have beentransferred to Singapore SPV or that to the extent that any such TransferredAssets or Transferred Liabilities have not been so transferred the Agent issatisfied (acting reasonably) that provisions are in place to provide that theMGG Group is economically in substantially the same position as if thoseTransferred Assets or Transferred Liabilities had been so transferred.

 

(c)                                      Acertificate of an authorised signatory of the Company certifying that:

 

(i)                        No condition of the Acquisition (in particular the AcquisitionClosing Conditions) and no right or entitlement of the Initial Sponsors or theInvestors, the Company or any member of the Group (whether to receive documentsor otherwise) under the Acquisition Documents has been waived or modifiedexcept with the prior written consent of the Majority 

 

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Lenders andthat the Acquisition Documents contain the full agreement of the partiesthereto as to the matters set out therein;

 

(ii)                     following the making of the first Loans under the Term Facilities noGroup member shall have any Financial Indebtedness outstanding (other thanPermitted Indebtedness).

 

(d)                                     Evidencethat the Antitrust Approvals (as defined in the Business Combination Agreement)have been granted.

 

(e)                                      Confirmationfrom MGG as to the amount of the Hoechst Closing Amount (as defined in section4.5 of the Singapore Separation Agreement).

 

4.                                 **Other Financing Documents**

 

(a)                                      Copiesof:

 

(i)                        the executed Shareholders’ Agreement together with the agreedamendment relating to, *inter alia*, the treatment of proceedsreceived by the Company under the BCA;

 

(ii)                     the executed Mezzanine Facility Agreement and the Mezzanine FeeLetters; and

 

(iii)                  the executed China Subordination Agreement.

 

(b)                                     Evidencesatisfactory to the Agent that an aggregate amount of at least EUR500,000,000has been contributed by the Initial Sponsors to the Company in cash through thesubscription for, and issue of, fully paid up shares of the Company and that theInvestors are the sole shareholders in the Company as at the Closing Date.

 

(c)                                      Evidencesatisfactory to the Agent that loans equal to the full amount of the facilitiesmade available under the Mezzanine Facility Agreement will be made under theMezzanine Facility Agreement either on or prior to the date the firstUtilisation is made.

 

(d)                                     Evidencesatisfactory to the Agent that Newco 2 owns 662/3 percent. of the issued share capital of MGG and that MIG has contributed theFamily MGG Shares to Newco 2 and that Newco 2 will, upon the registration ofthe increase in the share capital of Newco 2, be the owner of 100 per cent. ofthe issued share capital of MGG.

 

(e)                                      TheFunds Flow Statement.

 

(f)                                        The Hedging Letter duly signed by the parties thereto.

 

(g)                                     TheFee Letter referred to in Clause 13.5 (*Arrangement Fee*) duly signed  by the parties thereto.

 

(h)                                     TheFee Letter referred to in Clause 13.6 (*Agency Fee*) duly signed by the partiesthereto.

 

195

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(i)                                         The Fee Letter referred to in Clause 13.7 (*Security Trustee Fee*) dulysigned by the parties thereto.

 

(j)                                         The Syndication Letter duly signed by the parties thereto.

 

(k)                                      Acertificate of an authorised signatory of the Company certifying that each copydocument delivered to the Agent pursuant to paragraphs 3 and 4 of this Part 1of Schedule 2 is correct, complete and in full force and effect as at a date noearlier than the date of this Agreement.

 

5.                                 **Security, Guarantee andPriority Documents**

 

(a)                                      SharePledge by Newco 2 over 100% of the shares in MGG (it being noted that suchpledge will only be effective over shares in MGG representing 662/3%of the registered share capital of MGG until the required capital increase inthe share capital of Newco 2 is registered so as to make the contribution ofthe Family MGG Shares to Newco 2 effective).

 

(b)                                     Dulyexecuted copy of the Intercreditor Deed.

 

(c)                                      Wherethe Lenders’ relevant counsel deems such to be either necessary or desirable,any recordings, filings or other action required to perfect the Securitypurported to be created by the Security Documents referred to above (including,without limitation, delivery of share certificates and stock transfer formsexecuted in blank in relation to pledged shares, noting of pledges on shareregisters, application for registration of security and notices of assignment).

 

(d)                                     Dulyexecuted Accession Letter by each Initial Borrower, together with thesatisfaction of the requirements of Clause 26.2 (*Additional Borrowers*) forthe accession of each Initial Borrower as an Additional Borrower.

 

(e)                                      Dulyexecuted Accession Letter by each Initial Guarantor (other than Messer AustriaGmbH), together with the satisfaction of the requirements of Clause 26.4 (*AdditionalGuarantors*) for the accession of each Initial Guarantor as anAdditional Guarantor.

 

(f)                                        Evidence (based on the management accounts of the MGG Group) thatupon the Initial Guarantors acceding as Guarantors and providing the Securityto be provided in accordance with Schedule 15 (*Security Principles*):

 

(i)                        the aggregate (without double counting) of (1) the EBITDA of each ofthe Guarantors (but ignoring losses before interest and tax of any Guarantor)and (2) the EBITDA of each Consolidated Subsidiary of MGG which is not aGuarantor (but ignoring any losses before interest and tax of that ConsolidatedSubsidiary) in respect of which 95% or more of its voting and issued sharecapital is pledged pursuant to a Security Document (the Guarantors referred toin paragraph (1) of this paragraph (f)(i) taken together with the Subsidiariesreferred to in paragraph (2) of this paragraph (f)(i) being collectivelyreferred to as the “**Security Parties**”); and

 

196

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(ii)                     the aggregate gross assets (without double counting and excludingassets which are not included on consolidation) of the Security Parties,

 

exceed (in relation to (i) above) 80 per cent. of theconsolidated EBITDA and (in relation to (ii) above) 65 per cent. of theconsolidated gross assets of the Newco 2 Group; and

 

(iii)                  the aggregate (without double counting) of the EBITDA of each of theGuarantors (but ignoring losses before interest and tax of any Guarantor); and

 

(iv)                 theaggregate gross assets (without double counting and excluding assets which arenot included on consolidation) of the Guarantors,

 

exceed (in relation to (iii) above) 70 per cent. ofthe consolidated EBITDA and (in relation to (iv) above) 60 per cent. of theconsolidated gross assets of the Newco 2 Group.

 

(g)                                     Evidencesatisfactory to the Agent in relation to the Initial Guarantors that on thefirst Utilisation of the Facilities any Financial Indebtedness which benefitsfrom Security or Quasi Security over assets which will also be subject to theSecurity to be created under any Security Documents to be entered into by suchInitial Guarantors will be repaid.

 

(h)                                     Dulyexecuted Austrian Guarantee, together with all of the documents and evidencereferred to in Part II of this Schedule in relation to Messer Austria GmbHother than paragraph 1 thereof.

 

(i)                                         An original executed irrevocable power of attorney from MIGauthorising the Security Trustee to execute a pledge on behalf of MIG over allof its shares in MGG if Newco 2 does not own 100% of the shares in MGG within 20days of the date of such power of attorney (which is anticipated to be signedon the Closing Date), together with evidence that such power of attorney hasbeen duly executed by a duly authorised signatory.

 

6.                                 **Legal opinions**

 

(a)                                      Alegal opinion of Clifford Chance LLP, London, legal advisers to the Arrangersand the Agent in England, substantially in the form distributed to the OriginalLenders prior to signing this Agreement.

 

(b)                                     Alegal opinion of Clifford Chance Pünder, legal advisers to the Arrangers andthe Agent in Germany, substantially in the form distributed to the OriginalLenders prior to signing this Agreement.

 

7.                                 **Other documents and evidence**

 

(a)                                      Acopy of any other Authorisation or other document, opinion or assurance whichthe Agent reasonably considers to be necessary (if it has notified the Companyaccordingly) in connection with the entry into and performance of the 

 

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transactionscontemplated by any Finance Document or for the validity and enforceability ofany Finance Document.

 

(b)                                     Evidencethat the fees, costs and expenses then due pursuant to Clause 13 (*Fees*)and Clause 18 (*Costs and expenses*) have been paid or will be paid by or onthe first Utilisation Date.

 

(c)                                      Acopy of a Certificate of Merger from the Secretary of State of the State ofDelaware evidencing that Messer AGS, Inc. has merged into Messer GriesheimIndustries, Inc. (with Messer Griesheim Industries, Inc. as the survivingentity).

 

(d)                                     Asigned copy of the engagement letter between MGG and KPMG pursuant to whichKPMG agrees to provide Auditors Reports.

 

8.                                 **Agreed Form Documents**

 

(a)                                      Agreedform of Permitted Exchange Notes Security.

 

(b)                                     Agreedform of Permitted High Yield Security.

 

(c)                                      Agreedforms of Treasury Borrower Loan Agreement.

 

(d)                                     Agreedform of High Yield Subordination Agreement.

 

(e)                                      Agreedform of Exchange Notes Subordination Agreement.

 

(f)                                        Agreed form of Newco 2 Loan Subordination Agreement.

 

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**Part IIConditions Precedent required to be delivered by an Additional Obligor**

 

1.                                 AnAccession Letter, duly executed by the Additional Obligor and the Obligor’sAgent.

 

2.                                 Acopy of the constitutional documents of the Additional Obligor in the formrequired by the Agent together with a copy of the resolutions of theshareholders of the Additional Obligor adopting such changes to theconstitutive documents of the Additional Obligor as the Agent shall haverequired.

 

3.                                 Wherethe Lenders’ relevant counsel deems such to be either necessary or desirable, acopy of a resolution of the board of directors (or the equivalent thereof) ofthe Additional Obligor:

 

(a)                                      approvingthe terms of, and the transactions contemplated by, the Finance Documents towhich it is a party and resolving that it execute the Finance Documents towhich it is a party;

 

(b)                                     authorisinga specified person or persons to execute the Finance Documents to which it is aparty on its behalf; and

 

(c)                                      authorisinga specified person or persons, on its behalf, to sign and/or despatch alldocuments and notices (including, if relevant, any Utilisation Request andSelection Notice) to be signed and/or despatched by it under or in connectionwith the Finance Documents to which it is a party.

 

4.                                 Aspecimen of the signature of each person authorised by the resolution referredto in paragraph 3(b) above.

 

5.                                 Wherethe Lenders’ relevant counsel deems such to be either necessary or desirableeither in place of or in addition to the resolution referred to in paragraph 3above, a certificate or extract from a public commercial registry or otherevidence setting out the names and signatures of the persons authorised tosign, on behalf of the Additional Obligor, each Finance Document to which theAdditional Obligor is or is to be a party and any documents to be delivered bythe Additional Obligor pursuant to any of the Finance Documents.

 

6.                                 Wherethe Lenders’ relevant counsel deems such to be either necessary or desirablefor an Additional Guarantor, either a copy of a resolution signed by all theholders of the issued shares in such Additional Guarantor or a resolution ofthe supervisory board, work council or equivalent supervisory body of suchAdditional Guarantor, approving the terms of, and the transactions contemplatedby, the Finance Documents to which that Additional Guarantor is a party.

 

7.                                 Acertificate of the Additional Obligor (signed by a director or equivalent)confirming that borrowing or guaranteeing, as appropriate, the TotalCommitments would not cause any borrowing, guaranteeing or similar limit (whichis imposed by law or under its constitutive documents and binding on it) to beexceeded.

 

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8.                                 Acertificate of an authorised signatory of the Additional Obligor certifyingthat each copy document listed in paragraphs 1 through 7 of this Part II ofSchedule 2 is correct, complete and in full force and effect as at a date noearlier than the date of the Accession Letter.

 

9.                                 Acopy of any other Authorisation or other document, opinion or assurance whichthe Agent considers (acting reasonably) to be necessary or desirable inconnection with the entry into and performance of the transactions contemplatedby the Accession Letter or for the validity and enforceability of any FinanceDocument.

 

10.                           Ifavailable, the latest audited financial statements of the Additional Obligor.

 

11.                           A legalopinion of Clifford Chance LLP, London, legal advisers to the Arrangers and theAgent in England.

 

12.                           If theAdditional Obligor is incorporated in a jurisdiction other than England, alegal opinion of the legal advisers to the Arrangers and the Agent in thejurisdiction in which the Additional Obligor is incorporated.

 

13.                           If theSecurity to be granted by the proposed Additional Obligor involves the laws ofany jurisdiction other than England and the jurisdiction of an incorporation ofthe proposed Additional Obligor, legal opinion(s) from the legal advisers tothe Arrangers and Agent or the legal advisers to the Obligor’s Agent inrelation to the laws of such other jurisdiction.

 

14.                           If theproposed Additional Obligor is incorporated in a jurisdiction other thanEngland and is not to be a party to this Agreement, evidence that the processagent specified in Clause 40.2 (*Service of process*), if not  an Obligor, has accepted its appointment inrelation to the proposed Additional Obligor.

 

15.                           If theAdditional Obligor is to become an Additional Borrower, the accession of suchan Additional Obligor to this Agreement as an Additional Guarantor.

 

16.                           Dulyexecuted deed of accession to the Intercreditor Deed by the Additional Obligoras an Obligor, Intra-Group Borrower and Intra-Group Lender.

 

17.                           SuchSecurity Documents creating such Security as the Agent reasonably requires inaccordance with the Security Principles, duly executed by the AdditionalObligor and the Security Trustee (or, if appropriate, the Finance Parties).

 

18.                           If theAdditional Obligor is incorporated in any state of the United States ofAmerica, a certificate of solvency signed by the Chief Financial Officer ofsuch Additional Obligor.

 

19.                           Where theLenders’ relevant counsel reasonably deems such to be either necessary oradvisable, any recordings, filings or other action required to perfect theSecurity purported to be created by the Security Documents referred to above(including, without limitation, delivery of share certificates and stocktransfer forms executed in blank in relation to pledged shares, noting ofpledges on share registers, application for registration of security andnotices of assignment).

 

200

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20.                           Theconstitutive documents of any member of the Group whose shares are subject toSecurity under any of the Security Documents referred to above in the formrequired by the Agent together with any resolutions of the shareholders of suchmember of the Group adopting such changes to the constitutive documents of suchmember of the Group as the Agent shall have reasonably required to, among otherthings, remove any restriction on any transfer of shares or partnershipinterests (or equivalent) in such member of the Group pursuant to anyenforcement of any of such Security Documents.

 

21.                           If theAdditional Obligor is a Treasury Borrower, a Treasury Borrower Loan Agreementexecuted by it.

 

201

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**Part IIIAdditional Conditions Precedent required to be delivered by Debtco as an Additional Obligor**

 

1.                                 Allof the documents and evidence referred to in Part II of this Schedule.

 

2.                                 Evidencethat, immediately upon acceding as an Additional Obligor, Debtco will be thesole shareholder of MGG.

 

3.                                 Evidencethat, immediately upon acceding as an Additional Obligor, Debtco will assumethe rights and obligations of MGG under the Mezzanine Facility Agreement or anyDirect Mezzanine Refinancing.

 

4.

 

(a)                                      Ifat the time of Debtco’s accession Newco 2 has not pledged 100% of the shares inMGG pursuant to a Security Document, a share pledge over 100% of the shares inMGG.

 

(b)                                     Ifat the time of Debtco’s accession Newco 2 has pledged 100% of the shares in MGGpursuant to a Security Document, evidence that such share pledge remains inforce and is acknowledged by Debtco.

 

5.                                 Anassignment of all of Debtco’s receivables pursuant to a Global AssignmentAgreement, such assignment to include (without limitation and unless securedpursuant to a pledge referred to in paragraph 6 below) an assignment of all ofDebtco’s rights under all Intra-Group Loans where it is the lender.

 

6.                                 Anassignment over any Intra-Group Loans by Debtco where Debtco is the lender,such pledge to include a waiver of Debtco’s rights and obligations against theborrowers of such Intra-Group Loans upon the suspensive condition (*aufschiebendeBedingung*) of the receipt of a notice by the Security Trustee of thesale of shares in MGG following enforcement of the share pledge over the sharesin MGG.

 

7.                                 Securityover Debtco’s bank accounts pursuant to an Account Pledge, including over abank account opened by it with the Agent which is identified as a PrepaymentEscrow Account and pursuant to which no amounts may be withdrawn from thePrepayment Escrow Account other than as provided in Clause 9 (R*epayment andCancellation*).

 

8.                                 Evidencefrom appropriate advisers and other appropriate sources that having Debtco asthe German Group Member which is a Borrower under this Agreement and theMezzanine Facility Agreement might reasonably be expected to be more materiallyadvantageous from an overall German Tax perspective than having MGG as theGerman Group Member which is a Borrower under this Agreement and the MezzanineFacility Agreement.

 

202

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**SCHEDULE 3**Requests

 

**Part IUtilisation Request**

 

From:      [*Borrower*]

 

To:          [*Agent*]

 

Dated:

 

Dear Sirs

 

**[Messer Griesheim GmbH] – EUR1,050,000,000 and$540,000,000 Senior Facilities Agreement dated****• 2001 (the “FacilityAgreement”)**

 

1.                                 [Wewish to borrow a Loan on the following terms]/[We wish [*name of Fronting Bank*] toissue a [Letter of Credit]/[Bank Guarantee] as follows:]

 

ProposedUtilisation Date:                                                                                                               [             ](or, if that is not a Business Day, the next Business Day)

 

Facilityto be utilised:                                                                                                                                         [Term Disposal Facility]/[Term A Facility]/[Term B EuroFacility]/[Term B Dollar Facility]/[Term C Euro Facility]/[Term C DollarFacility]/ [Revolving Facility I]/[Revolving Facility II]*

 

Currencyof [Loan]/[Letter of Credit/

 

[BankGuarantee]:                                                                                                                                                            [             ]

 

Amount:                                                                                                                                                                                                            [             ] or, if less,the Available Facility

 

[InterestPeriod:]                                                                                                                                                                  [             ]

 

[ExpiryDate:]                                                                                                                                                                                   [             ]

 

[FrontingBank:]                                                                                                                                                                    [             ]

 

2.                                 Weconfirm that each condition specified in Clause 4.2 (*Further conditions precedent*)required to be satisfied in connection with this Utilisation is satisfied onthe date of this Utilisation Request.

 

3.                                 [Theproceeds of this Loan should be credited to [*account*].]/[The [Letter ofCredit/Bank Guarantee] should be issued in favour of [*name of beneficiary*] in theform attached and delivered to the recipient at [*address of beneficiary*] andis requested to be issued for the following purpose: [  ]].

 

4.                                 ThisUtilisation Request is irrevocable, save that if it relates solely to the issueof a Letter of Credit or Bank Guarantee in which case it may be revoked bynotice in writing to the Agent and the relevant Fronting Bank at any time priorto the requested Letter of Credit or Bank Guarantee being issued.

 

203

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| Yours  faithfully                                         |
|-----------------------------------------------------------|
|                                                      |
|                                                      |   |   |
| authorised  signatory for  [*name  of relevant Borrower*] |

 

----

* delete as appropriate

 

204

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**Part IISelection Notice(1)**

 

**Applicable to a Term Facilities Loan**

 

From:      [*Borrower*]

 

To:          [*Agent*]

 

Dated:

 

Dear Sirs

 

**[Messer Griesheim GmbH] – EUR1,050,000,000  and $540,000,000 Senior Facilities Agreement dated****• 2001 (the “FacilityAgreement”)**

 

1.                                 Werefer to the following [Term Disposal Facility]/[Term A Facility]/[Term B EuroFacility]/[Term B Dollar Facility]/[Term C Euro Facility]/[Term C DollarFacility] Loan[s] in [*identify currency*] with an Interest Periodending on [          ]*.

 

2.                                 [Werequest that the above [Term Disposal Facility]/[Term A Facility]/[Term B EuroFacility]/[Term B Dollar Facility]/[Term C Euro Facility]/[Term C DollarFacility] Loan[s] be divided into[             ][Term Disposal Facility]/[Term A Facility]/[Term B Euro Facility]/[Term BDollar Facility]/[Term C Euro Facility]/[Term C Dollar Facility] Loans  with the following Base Currency Amounts andInterest Periods:]**

 

*or*

 

[We request that the next Interest Period for theabove [Term Disposal Facility]/[Term A Facility]/[Term B Dollar Facility]/[TermC Euro Facility]/ [Term C Dollar Facility] Loan[s] is [      ]].***

 

3.                                 Werequest that the above [Term Disposal Facility]/[Term A Facility]/[Term BDollar Facility]/[Term C Euro Facility] Loan[s] [is]/[are] [denominated in thesame currency for the next Interest Period]/[denominated in the followingcurrencies:[                         ].  As this results in a change of currency weconfirm that each applicable condition specified in Clause 4.2 (*Furtherconditions precedent*) is satisfied on the date of this SelectionNotice.  The proceeds of any change incurrency should be credited to [*account*].].

 

4.                                 ThisSelection Notice is irrevocable.

 

----

(1)                                  This may be used to (i) select the currency of an existing Term AFacility Loan for its next Interest Period, (ii) request the division of anexisting Term Facility Loan into two or more Term Facility Loans havingspecified Base Currency Amounts and Interest Periods, and (iii) select theduration of the next Interest Period for an existing Term Facility Loan.

 

*              Insertdetails of all Term Facility Loans in the same currency which have an InterestPeriod ending on the same date.

 

**           Usethis option if division of Term Facility Loans is requested.

 

***         Usethis option if sub-division is not required.

 

205

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| Yours  faithfully                                                                              |
|------------------------------------------------------------------------------------------------|
|                                                                                           |
|                                                                                           |   |   |
| authorised  signatory for  [the Obligor’s Agent on behalf of] [name of relevant Borrower] |

 

206

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**Part III****Change Of Borrower Notice Applicable To aTerm Facilities Loan**

 

From:      [MGG /Messer Finance S.A.] (the “First Borrower”)

 

And                        [MGG/ Messer Finance S.A.] (the “Second Borrower”)

 

To:                          [                               ] (as Agent)

 

Date:

 

Dear Sirs,

 

**Messer Griesheim EUR 1,050,000,000 and $540,000,000 Senior FacilitiesAgreementdated 28 April 2001, as amended from time to time (the “Facility Agreement”)**

 

1.                                 Werefer to the Facility Agreement.  Termsdefined in the Facility Agreement shall have the same meaning in this Notice.

 

2.                                 Werefer to the following [Term A Facility] / [Term B Euro Facility] / [Term CEuro Facility] Loan in [*identify currency*]with an Interest Period ending on [*   insert date* ] (the “Change Date”)made to the First Borrower.

 

3.                                 TheFirst Borrower wishes to prepay [the above Loan / [•] of the above Loan], and the Second Borrower wishes to borrower[the above Loan / [•] of the aboveLoan], on the Change Date.

 

4.                                 Weconfirm that each condition specified in Clause 7.8 (*Change of Borrower*) required to be satisfied in connectionwith this change of Borrower is satisfied on the date of this Change ofBorrower Notice.

 

5.                                 Weconfirm that, at the date hereof, the Repeating Representations are true in allmaterial respects.

 

6.                                 ThisChange of Borrower Notice is irrevocable.

 

Yours faithfully,

 

 

 
| authorised signatory of  [*Insert name of First Borrower*] | authorised  signatory of  [*Insert name of Second Borrower*] |
|------------------------------------------------------------|--------------------------------------------------------------|

 

207

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**SCHEDULE 4**MANDATORY COST FORMULAE

 

1.                                 TheMandatory Cost is an addition to the interest rate in relation to the cost ofcompliance with (a) the requirements of the Bank of England and/or theFinancial Services Authority (or, in either case, any other authority whichreplaces all or any of its functions) or (b) the requirements of the EuropeanCentral Bank.

 

2.                                 Onthe first day of each Interest Period (or as soon as possible thereafter) theAgent shall calculate, as a percentage rate, a rate (the**“Additional Cost Rate”**) in accordancewith the paragraphs set out below. The Mandatory Cost will be calculated by theAgent as a weighted average of the Lenders’ Additional Cost Rates (weighted inproportion to the percentage participation of each Lender in the  relevant Loan) and will be expressed as apercentage rate per annum.

 

3.                                 TheAdditional Cost Rate for any Lender lending from a Facility Office in aParticipating Member State will be the percentage notified by that Lender tothe Agent as the cost of complying with the minimum reserve requirements of theEuropean Central Bank.

 

4.                                 TheAdditional Cost Rate for any Lender lending from a Facility Office in theUnited Kingdom will be calculated by the Agent as follows:

 

(a)                                      inrelation to a domestic sterling Loan:

 

 per cent. per annum

 

(b)                                     inrelation to a Loan in any currency other than domestic sterling:

 

 per cent. per annum.

 

Where:

 

A                                      is the percentage of Eligible Liabilities (assuming these to be inexcess of any stated minimum) which that Lender is from time to time requiredto maintain as an interest free cash ratio deposit with the Bank of England tocomply with cash ratio requirements.

 

B                                        is the percentage rate of interest (excluding the Margin and theMandatory Cost) payable for the relevant Interest Period on the Loan.

 

C                                        is the percentage (if any) of Eligible Liabilities which that Lenderis required from time to time to maintain as interest bearing Special Depositswith the Bank of England.

 

D                                       is the percentage rate per annum payable by the Bank of England tothe Agent on interest bearing Special Deposits.

 

208

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E                                         is the rate of charge payable by that Lender to the FinancialServices Authority pursuant to the Fees Regulations (but, for this purpose,ignoring any minimum fee required pursuant to the Fees Regulations) andexpressed in pounds per £1,000,000 of the Fee Base of that Lender.

 

5.                                 Forthe purposes of this Schedule:

 

(a)                                      “**EligibleLiabilities**” and “**Special Deposits**” have the meanings givento them from time to time under or pursuant to the Bank of England Act 1998 or(as may be appropriate) by the Bank of England;

 

(b)                                     “**FeesRegulations**” means the Banking Supervision (Fees) Regulations 2000or such other law or regulation as may be in force from time to time in respectof the payment of fees for banking supervision; and

 

(c)                                      “**Fee Base**”has the meaning given to it, and will be calculated in accordance with, theFees Regulations.

 

6.                                 Inapplication of the above formulae, A, B, C and D will be included in theformulae as percentages (i.e. 5 per cent. will be included in the formula as 5and not as 0.05).  A negative resultobtained by subtracting D from B shall be taken as zero.  The resulting figures shall be rounded tofour decimal places.

 

7.                                 EachLender shall supply any information required by the Agent for the purpose ofcalculating its Additional Cost Rate. In particular, but without limitation, each Lender shall supply thefollowing information in writing on or prior to the date on which it becomes aLender:

 

(a)                                      itsjurisdiction of incorporation and the jurisdiction of its Facility Office; and

 

(b)                                     anyother information that the Agent may reasonably require for such purpose.

 

Each Lender shall promptly notify the Agent in writingof any change to the information provided by it pursuant to this paragraph.

 

8.                                 Thepercentages or rates of charge of each Lender for the purpose of A, C and Eabove shall be determined by the Agent based upon the information supplied toit pursuant to paragraph 7 above and on the assumption that, unless a Lendernotifies the Agent to the contrary, each Lender’s obligations in relation tocash ratio deposits, Special Deposits and the Fees Regulations are the same asthose of a typical bank from its jurisdiction of incorporation with a FacilityOffice in the same jurisdiction as its Facility Office.

 

9.                                 TheAgent shall have no liability to any person if such determination results in anAdditional Cost Rate which over or under compensates any Lender and shall beentitled to assume that the information provided by any Lender pursuant toparagraphs 3 and 7 above is true and correct in all respects.

 

10.                           Anydetermination by the Agent pursuant to this Schedule in relation to a formula,the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lendershall, in the absence of manifest error, be conclusive and binding on allParties.

 

209

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11.                           The Agentmay from time to time, after consultation with the Obligor’s Agent and theLenders, determine and notify to all Parties any amendments which are requiredto be made to this Schedule in order to comply with any change in law,regulation or any requirements from time to time imposed by the Bank 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 suchdetermination shall, in the absence of manifest error, be conclusive andbinding on all Parties.

 

210

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**SCHEDULE 5**FORM OF TRANSFER CERTIFICATES

 

**Part I**

 

To:          [                               ] as Agent and [                   ] as Security Trustee

 

From:      [*The ExistingLender*] (the “**Existing Lender**”) and [*The New Lender*] (the “**New Lender**”)

 

Dated:

 

**[Messer Griesheim GmbH] – EUR1,050,000,000 and$540,000,000 Senior Facilities Agreement dated****• 2001 (the “FacilityAgreement”)**

 

1.                                 Werefer to Clause 25.5 (*Procedure for transfer*):

 

(a)                                      TheExisting Lender and the New Lender agree to the Existing Lender and the NewLender transferring by novation all or part of the Existing Lender’sCommitment, rights and obligations referred to in the Schedule in accordancewith Clause 25.5 (*Procedure for transfer*).

 

(b)                                     Theproposed Transfer Date is [                                        ].

 

(c)                                      TheFacility Office and address, fax number and attention details for notices ofthe New Lender for the purposes of Clause 33.2 (*Addresses*) and Clause 31 (*Notices*)of the Intercreditor Deed are set out in the Schedule.

 

2.                                 TheNew Lender expressly acknowledges the limitations on the Existing Lender’sobligations set out in paragraph (c) of Clause 25.4 (*Limitation of responsibility ofExisting Lenders*).

 

3.                                 TheNew Lender confirms that it has received a copy of each of the SecurityDocuments governed by German law which are pledges, is aware of their contentsand hereby expressly consents to the declarations of the Security Trustee madeon behalf of the New Lender as future pledgee in such Security Documents.

 

4.                                 TheNew Lender hereby agrees with each other person who is or who becomes a partyto the Intercreditor Deed that with effect on and from the Transfer Date itwill be bound by the Intercreditor Deed referred to in the Facility Agreementas a Senior Lender [and Hedge Counterparty] ([each] as defined in the IntercreditorDeed) as if it had been party to the Intercreditor Deed in that capacity.

 

5.                                 ThisTransfer Certificate is executed as a deed by the New Lender and is governed byEnglish law.

 

211

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**THE SCHEDULE**

 

**Commitment/rights andobligations to be transferred**

 

[*insertrelevant details*][*FacilityOffice address, fax number and attention details for notices and accountdetails for payments,*]

 
|               | EXECUTED AS  A DEED                                                   |
|--------------------|-----------------------------------------------------------------------|
|               |                                                                  |
|               | By:                                                                   |
|               |                                                                  |
| [Existing  Lender] | [New Lender]                                                          |
|               |                                                                  |
| By:                | acting by  [insert  signatory/signatories names]  in the presence of: |
|               |                                                                  |
|               | Signature of  witness:                                                |
|               |                                                                  |
|               | Name of  witness:                                                     |
|               |                                                                  |
|               | Address of  witness:                                                  |

 

This Transfer Certificate is accepted by the Agent andthe Transfer Date is confirmed as[           ] and theAgent hereby confirms that the transfer has been recorded in the Register onthe Transfer Date.

 

[Agent]

 

By:

 

212

----

 

**Part IILMA Transfer Certificate (Par)**

 

To:                   [                    ]as Agent and [                    ]as Security Trustee

 

**BANK:                                                                                                                                                                                  **Date:

 

**TRANSFEREE:**

 

This Transfer Certificate is entered into pursuant to(i) the agreement (the “**Sale Agreement**”) evidenced by theConfirmationdated                       between the Bank and the Transferee (acting directly or through theirrespective agents) and (ii) the Credit Agreement and (iii) the IntercreditorDeed (as defined in the Credit Agreement) and is entered into by the Transfereeas a deed.

 

On the Transfer Date, the transfer by way of novationfrom the Bank to the Transferee on the terms set out herein and in the CreditAgreement shall become effective subject to:-

 

(i)                                         the Sale Agreement and the terms and conditions incorporated in theSale Agreement;

 

(ii)                                      theterms and conditions annexed hereto; and

 

(iii)                                   theschedule annexed hereto,

 

all of which are incorporated herein by reference.

 

The Transferee hereby agrees with each other personwho is or who becomes a party to the Intercreditor Deed that with effect on andfrom the Transfer Date it will be bound by the Intercreditor Deed as a SeniorLender [and Hedge Counterparty] ([each] as defined in the Intercreditor Deed)as if it had been party to the Intercreditor Deed in that capacity. The addressspecified in the Schedule hereto shall also be the address of the Transfereefor the purpose of Clause 31 (*Notices*) of the Intercreditor Deed.

 
| **The Bank**                                                                                                                           | **The Transferee**                                                                                                                     |
|----------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------|
| [                      ] | [                      ] |
| By:                                                                                                                                    | By:                                                                                                                                    |

 

**The Agent**

 

This TransferCertificate is accepted by the Agent and the Transfer Date is confirmed as[                  ] and the Agenthereby confirms that the transfer has been recorded in the Register on thisTransfer Date.

 

[Name ofAgent]

 

By:

 

213

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**The Schedule**

** **
| **Credit Agreement  Details:**                                                                           |   |                                                                                                                         |
|----------------------------------------------------------------------------------------------------------|--------|------------------------------------------------------------------------------------------------------------------------------|
| Borrower(s):                                                                                             |   |                                                                                                                         |
| Credit  Agreement Dated                                                                                  |   |                                                                                                                         |
| Guarantor(s):                                                                                            |   |                                                                                                                         |
| Agent  Bank:                                                                                             |   |      No             Yes  (specify) |
| Security:                                                                                                |   |                                                                                                                         |
| Total  Facility Amount:                                                                                  |   |                                                                                                                         |
| Governing  Law:                                                                                          |   |                                                                                                                         |
| Additional  Information:                                                                                 |   |                                                                                                                         |
|                                                                                                     |   |                                                                                                                         |
| **Transfer Details**:                                                                                    |   |                                                                                                                         |
| Name  of Tranche Facility:                                                                               |   |                                                                                                                         |
| Nature (Revolving, Term, Acceptances  Guarantee/Letter of Credit, Other):                                |   |                                                                                                                         |
| Final  Maturity:                                                                                         |   |                                                                                                                         |
| *Participation  Transferred*  Commitment transferred(1)                                             |   |                                                                                                                         |
| Drawn  Amount (details below):(1)                                                                        |   |                                                                                                                         |
| Undrawn  Amount:(1)                                                                                      |   |                                                                                                                         |
| Settlement  Date:                                                                                        |   |                                                                                                                         |
| *Details of outstanding Credits(1)*                                                                      |   |                                                                                                                         |
| Specify  in respect of each Credit:                                                                      |   |                                                                                                                         |
| Transferred  Portion (amount):                                                                           |   |                                                                                                                         |
| Tranche/Facility:                                                                                        |   |                                                                                                                         |
| Nature:                                                                                                  |   |    Term  Revolver Acceptance Guarantee/Letter of Credit Other (specify)                                       |
| Details of other Credits are set out on  the attached sheet                                              |   |                                                                                                                         |
| **Administration Details**                                                                               |   |                                                                                                                         |
| Bank’s  Receiving Account:                                                                          |   |                                                                                                                         |
| Transferee’s  Receiving Account:                                                                    |   |                                                                                                                         |
|                                                                                                     |   |                                                                                                                         |
| **Addresses**                                                                                            |   |                                                                                                                         |
| Bank                                                                                                     |   | Transferee                                                                                                                   |
| [                 ] |   | [                 ]                     |
| Address:                                                                                                 |   | Address:                                                                                                                     |
| Telephone:                                                                                               |   | Telephone:                                                                                                                   |
| Facsimile:                                                                                               |   | Facsimile:                                                                                                                   |
| Telex:                                                                                                   |   | Telex:                                                                                                                       |
| Attn/Ref                                                                                                 |   | Attn/Ref                                                                                                                     |

 

----

(1)      Asat the date of the Transfer Certificate

 

214

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**TERMS AND CONDITIONS**

 

Theseare the Terms and Conditions applicable to the transfer certificate includingthe Schedule thereto (the “**Transfer Certificate**”) to which they areannexed.

 

1.                                 **Interpretation**

 

In these Terms and Conditions words and expressionsshall (unless otherwise expressly defined herein) bear the meaning given tothem in the Transfer Certificate, the Credit Agreement or the Sale Agreement.

 

2.                                 **Transfer**

 

The Bank requests the Transferee to accept and procurethe transfer by novation of all or a part (as applicable) of such participationof the Bank under the Credit Agreement as is set out in the relevant part ofthe Transfer Certificate under the heading “Participation Transferred” (the“Purchased Assets”) by counter-signing and delivering the Transfer Certificateto the Agent at its address for the service of notice specified in the CreditAgreement.  On the Transfer Date theTransferee shall pay to the Bank the Settlement Amount as specified in thepricing letter between the Bank and the Transferee dated the date of theTransfer Certificate (adjusted, if applicable, in accordance with the SaleAgreement) and completion of the transfer will take place.

 

3.                                 **Effectiveness of Transfer**

 

The Transferee hereby requests the Agent to accept theTransfer Certificate as being delivered to the Agent pursuant to and for thepurposes of the Credit Agreement so as to take effect in accordance with theterms of the Credit Agreement on the Transfer Date or on such later date as maybe determined in accordance with the terms thereof.

 

4.                                 **Transferee’s Undertaking**

 

The Transferee hereby undertakes with the Agent andthe Bank and each of the other parties to the Credit Documentation that it willperform in accordance with its terms all those obligations which by the termsthereof will be assumed by it after delivery of the Transfer Certificate to theAgent and satisfaction of the conditions (if any) subject to which the TransferCertificate is to take effect.

 

5.                                 **Payments**

 

5.1                           **Place**

 

All payments by either party to the other under theTransfer Certificate shall be made to the Receiving Account of that otherparty.  Each party may designate adifferent account as its Receiving Account for payment by giving the other notless than five Business Days notice before the due date for payment.

 

215

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5.2                           **Funds**

 

Payments under the Transfer Certificate shall be madein the currency in which the amount is denominated for value on the due date atsuch times and in such funds as are customary at the time for settlement oftransactions in that currency.

 

6.                                 **The Agent**

 

The Agent shall not be required to concern itself withthe Sale Agreement and may rely on the Transfer Certificate without takingaccount of the provisions of such agreement.

 

7.                                 **Assignment of Rights**

 

The Transfer Certificate shall be binding upon andensure to the benefit of each party and its successors and permitted assigns **providedthat** neither party may assign or transfer its rights thereunderwithout the prior written consent of the other party.

 

8.                                 **Governing Law andJurisdiction**

 

The Transfer Certificate (including, withoutlimitation, these Terms and Conditions) shall be governed by and construed inaccordance with the laws of England, and the parties submit to thenon-exclusive jurisdiction of the English courts.

 

Each party irrevocably appoints the person describedas process agent (if any) specified in the Sale Agreement to receive on itsbehalf service of any action, suit or other proceedings in connection with theTransfer Certificate.  If any personappointed as process agent ceases to act for any reason the appointing partyshall notify the other party and shall promptly appoint another personincorporated within England and Wales to act as its process agent.

 

9.                                 **German Law Security**

 

The Transferee confirms that it has received a copy ofeach of the Security Documents governed by German law which are pledges, isaware of their contents and hereby expressly consents to the declarations ofthe Security Trustee made on behalf of the New Lender as future pledgee in suchSecurity Documents

 

216

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**Part IIIDebtco Exit Transfer Certificate**

 

To:          [    ]as Agent

 

From:      [Debtco](“**Debtco**”)and [Initial German Borrowers] (the “**Initial German Borrowers**”)

 

Dated:

 

**[Messer Griesheim GmbH] - EUR1,050,000,000 and$540,000,000 Senior Facilities Agreement dated  ****•  2001 (the “FacilityAgreement”)**

 

1.                                 Thisis to record that transfers referred to in paragraph (a) of Clause 26.8 (*Transfers onDebtco Exit Date*) which are to take effect in accordance with suchClause on the Debtco Exit Date in respect of the following Utilisations are tobe transferred from Debtco to the Initial German Obligors as follows:

 

| **Utilisation**                      |   | **Amount  of  Utilisation** |   | **Current  Interest  Period/Term** |   | **Amount  transferred** |   | **Initial  German  Borrower to whom  transferred** |   |
|--------------------------------------|--------|-----------------------------|--------|------------------------------------|--------|-------------------------|--------|----------------------------------------------------|--------|
| [for  example, Term A Facility Loan] |   |                        |   |                               |   |                    |   |                                               |   |

 

2.                                 Thiscertificate is governed by English law.

 
| [Debtco] |   | [Each  Initial German Borrower] |
|----------|--------|---------------------------------|
|     |   |                            |
| By:      |   | By:                             |

 

Accepted bythe Agent

 

[Agent]

 

By:

 

Date:

 

217

----

 

**SCHEDULE 6**FORMOF ACCESSION LETTER

 

To:          [            ]as Agent and[                  ]as Security Trustee

 

From:      [*Subsidiary*]and [Obligor’s Agent]

 

Dated:

 

Dear Sirs

 

**[Messer Griesheim GmbH] - EUR1,050,000,000 and$540,000,000 Senior Facilities Agreement dated****• 2001 (the “FacilityAgreement”)**

 

1.                                 [*Subsidiary*]agrees to become an Additional [Borrower]/[Guarantor] and to be bound by theterms of the Facility Agreement as an Additional [Borrower]/[Guarantor]pursuant to Clause [26.2 (*Additional Borrowers*)]/[Clause 26.4 (*AdditionalGuarantors*)] of the Facility Agreement [except that [insert anyagreed limitations on the [Guarantor’s] obligations under Clause 19 (*Guaranteeand Indemnity*)].  [*Subsidiary*]is a company duly incorporated under the laws of [*name of relevant jurisdiction*].

 

2.                                 [Subsidiary]hereby agrees with each other person who is or who becomes a party to theIntercreditor Deed (as defined in the Facility Agreement) that with effect onand from the date hereof it will be bound by the Intercreditor Deed as anObligor, Intra-Group Lender and Intra-Group Borrower (each as defined in theIntercreditor Deed).

 

3.                                 [*Subsidiary’s*]administrative details are as follows:

 

Address:

 

Fax No:

 

Attention:

 

4.                                 Thisletter is governed by English law.

 

5.                                 [TheObligor’s Agent confirms that [*Subsidiary*] is a Treasury Borrower].*

 

This Accession Letter is entered into by [*Subsidiary*]as a deed.

 
|                   |   | EXECUTED as a deed |
|------------------------|--------|--------------------|
|                   |   |               |
|                   |   | by                 |
|                   |   |               |
| [Obligor’s Agent] |   | [Subsidiary]       |

 

----

* Only include if relevant.

 

218

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|   |   | acting by [name of signatory/ies] in the presence  of: |
|--------|--------|--------------------------------------------------------|
|   |   |                                                   |
|   |   | Signature of witness:                                  |
|   |   |                                                   |
|   |   | Name of witness:                                       |
|   |   |                                                   |
|   |   | Address of witness:                                    |

 

[Note: each of the following needs to be added if aLuxembourg company is acceding as an Obligor:

 

*For purposes of Article 1 of the Protocol annexed to the Convention onJurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,signed in Brussels on 27 September 1968 and without prejudice to the foregoingexecution of the Intercreditor Deed by the parties hereto [Messer Finance S.A.]expressly and specifically confirms its agreement to the provisions of Clause38 of the Intercreditor Deed*.

 
|                  |   |
|-----------------------|--------|
|                  |
| [Messer Finance S.A.] |

 

*[Messer Finance S.A.] declares to have specific knowledge of andexpressly and specifically accepts, for the purposes of Article 1135-1 of theLuxembourg Civil Code, the content of the following clauses of theIntercreditor Deed: 9.1, 9.2, 11.3, 14.2, 14.3, 14.5, 19.5, 22.1, 34.7, 34.10,34.14, 34.18, 34.19 and 38.1.*

 
|                  |   |
|-----------------------|--------|
|                  |
| [Messer Finance S.A.] |

 

*For purposes of Article 1 of the Protocol annexed to the Convention onJurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,signed in Brussels on 27 September 1968 and without prejudice to the foregoingexecution of this Agreement by the parties hereto [Messer Finance S.A.]expressly and specifically confirms its agreement to the provisions of Clause40.1 of the Facility Agreement.*

 
|                  |   |
|-----------------------|--------|
|                  |
| [Messer Finance S.A.] |

 

*[Messer Finance S.A.] declares to have specific knowledge of and expresslyand specifically accepts, for the purposes of Article 1135-1 of the LuxembourgCivil Code, the content of the following clauses of the Facility Agreement:Clauses 8, 9, 14, 16, 17.2, 19.24, 25.4, 27.9, 40.*

 
|                  |   |
|-----------------------|--------|
|                  |
| [Messer Finance S.A.] |

 

219

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**SCHEDULE 7**FORMOF RESIGNATION LETTER

 

To:          [              ] as Agent

 

From:      [*resigningObligor*] and [Obligor’s Agent]

 

Dated:

 

Dear Sirs

 

**[CORNELIA Verwaltungsgesellschaft mbH] —EUR1,050,000,000 and $540,000,000 Senior Facilities Agreement dated****• 2001 (the “FacilityAgreement”)**

 

1.                                 Pursuantto [Clause 26.3 (*Resignation of a Borrower*)]/[Clause 26.6 (*Resignationof a Guarantor*)], we request that [*resigning Obligor*] bereleased from its obligations as a [Borrower]/[Guarantor] under the FacilityAgreement.

 

2.                                 Weconfirm that:

 

(a)                                      noDefault is continuing or would result from the acceptance of this request; and

 

(b)                                     [that[resigning Borrower] is under no actual or contingent obligations (in respectof principal or interest in relation to any Loan made to it or in respect ofany actual or contingent obligations relating to a Bank Guarantee or Letter ofCredit issued at its request) as a Borrower under any Finance Document.]*

 

3.                                 Thisletter is governed by English law.

 
| [Obligor’s  Agent] | [Subsidiary] |
|-------------------------|--------------|
|                    |         |
| By:                     | By:          |

 

----

*              Insertif Borrower resigning.

 

220

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**SCHEDULE 8**FORMOF COMPLIANCE CERTIFICATE

To:          [*              *]as Agent

 

From:      [Newco2]

 

Dated:

 

Dear Sirs

 

**[Company] — EUR1,050,000,000 and $531,000,000 SeniorFacilities Agreement****dated****• 2001 (the “Facility Agreement”)**

 

1.                                 Werefer to the Facility Agreement.  Thisis a Compliance Certificate.

 

2.                                 Weconfirm that:

 

(a)                                      Theratio of the EBITDA for the Relevant Period ending on [Quarter Date] to the NetCash Interest Payable for the Relevant Period ended on such Quarter Date was[    ]:1.0.

 

(b)                                     Theratio of  Total Senior Debt on [QuarterDate] to EBITDA of the Newco 2 Group for the Relevant Period ending onsuch Quarter Date was [  ]:1.0.

 

(c)                                      Theratio of Operating Cash Flow to Total Debt Service for the Relevant Periodended on [Quarter Date] was [   ]:1.0.

 

(d)                                     Theratio of  Total Debt on [Quarter Date]to the EBITDA of the Newco 2 Group for the Relevant Period ending on suchQuarter Date was [  ]:1.0.

 

(e)                                      TotalDebt on [Quarter Date] was EUR [    ].

 

(f)                                        [The aggregate Capital Expenditure of the members of the Newco 2Group for the Financial Quarter ended [    ] [2001/2002] was [     ]/Theaggregate Capital Expenditure of the members of the Newco 2 Group for thecalendar year ended on [    ] was [    ].

 

3.                                 Onthe basis of above, we confirm that:

 

(a)                                      theMargin in respect of Term A Facility Loans and Revolving Loans after yourreceipt of this Compliance Certificate will be [        ] per cent. per annum; and

 

(b)                                     theMargin in respect of Term B Euro Facility Loans and Term B Dollar FacilityLoans after your receipt of this Compliance Certificate will be [        ] per cent. per annum; and

 

(c)                                      theMargin in respect of Term C Euro Facility Loans and Term C Dollar FacilityLoans after your receipt of this Compliance Certificate will be [   ] per cent. per annum.

 

221

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4.                                 [Wealso confirm that:

 

(a)                                      theaggregate EBITDA of the Security Parties for the Relevant Period ended on[     ] was [  ]% of the consolidated EBITDAof the Newco 2 Group for that Relevant Period;

 

(b)                                     theaggregate gross assets of the Security Parties as at[     ] was [  ]% of the consolidated grossassets of the Newco 2 Group as at such date;

 

(d)                                     theaggregate EBITDA of the Guarantors for the Relevant Period ended on [    ] was [  ]% of the consolidated EBITDA of the Newco 2 Group for thatRelevant Period;

 

(e)                                      theaggregate gross assets (without double counting and excluding assets which arenot included on consolidation) of the Guarantors as at[     ] was [  ]% of the consolidated gross assets of the Newco 2 Group as at suchdate; and

 

(f)                                        the Material Companies for the purposes of paragraphs (b) and (c) ofthe definition of Material Company are as follows:

 

[                                                               ]

 

5.                                 Forthe purpose of the definition of Relevant Debt Relief Amount we hereby confirmthat the following assets were disposed of during the [FinancialQuarter/calendar year ended [      ]]:[insert details of assets] and of those assets [    ] were assets disposed of under the Disposal Plan and [    ] were assets falling within paragraph (i)of the definition of Permitted Disposals and the Debt Relief Amount relating toeach such disposal is as follows: [include amount and how calculated].

 

6.                                 [Weconfirm that no Default is continuing.]*

 
|      |   |
|-----------|--------|
|      |   |   |
| Prokurist |   |
|      |   |
| of        |   |
|      |   |
| [Newco 2] |   |
|           |        |  |

 

----

*                 Ifthis statement cannot be made, the certificate should identify any Default thatis continuing and the steps, if any, being taken to remedy it.

 

222

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**SCHEDULE 9**RESTRUCTURING PROGRAMME

 

In 2000 MGG management commissioned separate studiesby Roland Berger and Arthur D. Little for the purpose of achieving substantialcost savings by restructuring its operations and through investment in itsinformation technology (IT) processes both at the headquarters and at theregional levels. Based in part on the results of these studies, MGG managementapproved a restructuring programme for the Group.  Restructuring of the Group’s IT capabilities has been underwaysince 2000, and the general cost savings phase of the programme is anticipatedto be introduced in March 2001.  Theentire restructuring programme is anticipated to be completed by the end of2003.

 

**Cost Savings**

 

The cost savings phase of the restructuring programmeinvolves the relocation of the Group’s corporate headquarters from Frankfurt amMain to Krefeld, Germany, the reorganisation of certain of the Group’s existinglines of business and related relocation of business and personnel,streamlining functions of the Group’s management and personnel, and theintroduction of new operational procedures to optimise production capacity.Implementation of these measures will require expenditures in the followingcategories:

 

1.                                 Reductionin headcount - Europe Engineering Group

 

2.                                 Reductionin headcount - Operations throughout Europe

 

3.                                 Optimizationof bulk gas transportation in Europe

 

4.                                 Efficientcylinder management throughout Europe

 

5.                                 Reductionof Marketing & Sales Personnel in Europe

 

6.                                 Streamliningof application activities throughout European organisation

 

7.                                 CorporateOffice headcount reduction

 

8.                                 Relocationof Corporate Office from Frankfurt to Krefeld

 

9.                                 Reductionin headcount - Non-core Regional Headquarters (i.e. expats, regional offices).

 

10.                           Headcountreduction in IT Germany

 

11.                           GeneralAdministration headcount reduction in Germany

 

12.                           OtherGeneral Administration reduction - Europe (non-German)

 

The types of expenses and costs that will beassociated with these categories are:

 

•                  relocation andmoving expenses

 

•                  severance payments

 

•                  penalty fees for thetermination of commercial real estate and equipment leases

 

223

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•                  investment in newoffice equipment and furniture

 

•                  capital expenditurein IT in connection with operational improvements and

 

•                  associated ancillaryfees and costs,  including depreciationof capital costs

 

•                  potential penaltyfees for the termination of supplier / distribution agreements.

 

•                  write-off ofoperational fixed assets (i.e. tanks, cylinders, etc.)

 

**IT Restructuring**

 

The Group’s IT capabilities and infrastructure arebeing upgraded,  with improvements beingmade in information technology in connection with managing the Group’s supplychain in Europe, and its business to business integration with customers andsuppliers, and its financial management systems.

 

This will include purchase and installation of newhardware/software in connection with:

 

13.                           Europeansupply chain management systems

 

14.                           Cylindermanagement system for transportation of gas cylinders throughout Europe

 

15.                           Introductionof business to business applications and integration

 

16.                           Newfinancial management and accounting software

 

17.                           ITinfrastructure to support the above projects

 

Other costs will include:

 

•                  training

 

•                  installation

 

•                  maintenance

 

•                  trial and associatedstart-up costs

 

•                  depreciation ofcapital expenditures

 

224

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**SCHEDULE 10TIMETABLES**

** **

**Part ILoans**

** **
|                                                                                                                                                                                                      |   | **Loans  in euro**                                                                    |   | **Loans  in  sterling**                                                               |   | **Loans  in  dollars**                                                                |   | **Loans  in  other  currencies** |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|---------------------------------------------------------------------------------------|--------|---------------------------------------------------------------------------------------|--------|---------------------------------------------------------------------------------------|--------|----------------------------------|
| Agent  notifies the Obligor’s Agent if a currency is approved as an Optional  Currency in accordance with Clause 4.3 (*Conditions relating to Optional Currencies and the  Euro Unit*) (if relevant) |   |                                                                                  |   |                                                                                  |   |                                                                                  |   | U-4                              |
|                                                                                                                                                                                                      |   |                                                                                  |   |                                                                                  |   |                                                                                  |   |                             |
| Delivery of  a duly completed Utilisation Request (Clause 5.1 (*Delivery of a Utilisation Request*)  or a Selection Notice (Clause 11.1 (*Selection of Interest Periods and Terms*))                      |   | U-3  9.30am  (U noon for UR and U9.30am for SN if Loan to be made on Closing Date)    |   | U-1  9.30am  (U noon for UR and U9.30am for SN if Loan to be made on Closing Date)    |   | U-3  9.30am  (U noon for UR and U9.30am for SN if Loan to be made on Closing Date)    |   | U-3  9.30am                      |
|                                                                                                                                                                                                      |   |                                                                                  |   |                                                                                  |   |                                                                                  |   |                             |
| Agent  determines amount of the Loan in Optional Currency in accordance with Clause  6.3 (*Change  of currency*)                                                                                          |   | U-3  11.00am  (U1.00pm for UR and U11.00am for SN if Loan to be made on Closing Date) |   | U-1  11.00am  (U1.00pm for UR and U11.00am for SN if Loan to be made on Closing Date) |   | U-3  11.00am  (U1.00pm for UR and U11.00am for SN if Loan to be made on Closing Date) |   | U-3  11.00am                     |
|                                                                                                                                                                                                      |   |                                                                                  |   |                                                                                  |   |                                                                                  |   |                             |
| Agent  determines (in relation to a Utilisation) the Base Currency Amount of the  Loan, if required under Clause 5.4 (*Lenders’ and Fronting Banks’ participation*)                             |   | U-3  Noon  (U1.00pm for UR and U11.00am for SN if Loan to be made on Closing Date)    |   | U-1  Noon  (U1.00pm for UR and U11.00am for SN if Loan to be made on Closing Date)    |   | U-3  Noon  (U1.00pm for UR and U11.00am for SN if Loan to be made on Closing Date)    |   | U-3  Noon                        |

 

225

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|                                                                                                                            |   | **Loans  in euro**                                                                  |   | **Loans  in  sterling**                                                            |   | **Loans  in  dollars**                                                             |   | **Loans  in  other  currencies** |
|---------------------------------------------------------------------------------------------------------------------------------|--------|-------------------------------------------------------------------------------------|--------|------------------------------------------------------------------------------------|--------|------------------------------------------------------------------------------------|--------|----------------------------------|
| Agent  notifies the Lenders of the Loan in accordance with Clause 5.4 (*Lenders’  and Fronting Banks’ participation*) |   | U-3  3.00pm  (U2.00pm for UR and U noon for SN if Loan to be made on Closing Date)  |   | U-1  3.00pm  (U2.00pm for UR and U noon for SN if Loan to be made on Closing Date) |   | U-3  3.00pm  (U2.00pm for UR and U noon for SN if Loan to be made on Closing Date) |   | U-3  3.00pm                      |
|                                                                                                                            |   |                                                                                |   |                                                                               |   |                                                                               |   |                             |
| Agent  receives a notification from a Lender under Clause 6.2 (*Unavailability of a currency*)                                  |   | U-3  5.00pm  (Not applicable if Loan to be made on Closing Date)                    |   | U-1  5.00pm  (Not applicable if Loan to be made on Closing Date)                   |   | U-3  5.00pm  (Not applicable if Loan to be made on Closing Date)                   |   | U-3  5.00pm                      |
|                                                                                                                            |   |                                                                                |   |                                                                               |   |                                                                               |   |                             |
| Agent gives  notice in accordance with Clause 6.2 (*Unavailability of a currency*)                                              |   | U-2  9.30am  (U 2.00pm for UR and U noon for SN if Loan to be made on Closing Date) |   | U  9.30am  (U 2.00pm for UR and U noon for SN if Loan to be made on Closing Date)  |   | U-2  9.30am  (U2.00pm for UR and U noon for SN if Loan to be made on Closing Date) |   | U-2  9.30am                      |

 

226

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|                      |   | **Loans  in euro**                                                                                                                                                                                                         |   | **Loans  in  sterling**                                                                                                    |   | **Loans  in  dollars**                                                                                                     |   | **Loans  in  other  currencies** |
|---------------------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|----------------------------------------------------------------------------------------------------------------------------|--------|----------------------------------------------------------------------------------------------------------------------------|--------|----------------------------------|
| LIBOR or EURIBOR is fixed |   | Quotation Day as of 11:00 a.m. London time in  respect of LIBOR and as of 11.00 a.m. Brussels time in respect of  EURIBOR  (as soon as practicable on U  for UR and U noon for SN if Loan to be made on Closing Date) |   | Quotation Day as of 11:00 a.m.  (as soon as practicable on U for UR and U noon for SN if Loan to be made on  Closing Date) |   | Quotation Day as of 11:00 a.m.  (as soon as practicable on U for UR and U noon for SN if Loan to be made on  Closing Date) |   | Quotation Day as of 11:00 a.m.   |

 

“U”         =date of utilisation

 

“U - X” = X Business Days prior to date of utilisation

 

“UR”      =Utilisation Request

 

SN           =Selection Notice

 

227

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**Part IILetters of Credit and Bank Guarantees**

 
|                                                                                                                                                                                                    |   | **Letters  of Credit/Bank Guarantees** |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|----------------------------------------|
| Delivery of a duly completed Utilisation Request  (Clause 5.1 (*Delivery of a Utilisation Request*)                                                                                                     |   | U-5  9.30am                            |
|                                                                                                                                                                                                    |   |                                   |
| Agent notifies the Lenders and the relevant Fronting  Bank of the Letter of Credit or Bank Guarantee in accordance with Clause 5.4  (*Lenders’  and Fronting Banks’ Participation*).          |   | U-3  Noon                              |
|                                                                                                                                                                                                    |   |                                   |
| Delivery of written notice to the Agent requesting  an extension to the Term of a Letter of Credit or Bank Guarantee in  accordance with Clause 5.6 (*Renewal of a Letter of Credit or Bank Guarantee*) |   | U-4  4.00pm                            |

 

“U” = date of utilisation

 

“U - X” = X Business Days prior to date of utilisation

 

228

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**SCHEDULE 11**FORM OF BANK GUARANTEE

To:          [Beneficiary]

 

Date:   [                  ]

 

Dear Sirs

 

**Irrecoverable Guarantee No. [            ]**

 

1.                                 Inthis letter:

 

“**Borrower**” means [*details*].

 

“**Business Day**” means a day (not being aSaturday, Sunday or public holiday) on which banks and foreign exchange marketsare open for dealings in London.

 

“**Expiry Date**” means [*details*].

 

“**Facility**” means [*details*].

 

“**Issuer**” means [*details of Fronting Bank*].

 

“**Payment Date**” means the date for payment ofa demand being [*details - minimum five*] business days after the date ofreceipt of demand.

 

2.                                 Inconsideration of your agreeing to make available the Facility the Issuerirrevocably and unconditionally guarantees to you on receipt of written demand,the payment and discharge by the Borrower of all amounts payable or expressedto be payable to you pursuant to the Facility. This guarantee is given subjectas follows:

 

(a)                                      anydemand made hereunder shall be made in writing addressed to the Issuer or itsoffices at [*details*](Attention: [*details*]) in the form provided in Appendix A;

 

(b)                                     themaximum aggregate liability of the Issuer hereunder (inclusive of allprincipal, interest, costs and expenses) is [EURO/$ /£/other]; and

 

(c)                                      nodemand may be made hereunder after the Expiry Date and only one demand may bemade hereunder.

 

3.                                 Anypayment made hereunder shall be made on the Payment Date in [*currency*]by payment to the account of the Beneficiary specified in the demand.

 

4.                                 Thisguarantee is not assignable or transferable in whole or in part.

 

5.                                 Thisguarantee shall be governed by English law and the courts of England shall haveexclusive jurisdiction.

 

229

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| Yours faithfully                                 |
|--------------------------------------------------|
|                                             |
|                                             |   |
| for and on behalf of  [*name  of Fronting Bank*] |

 

230

----

 

**APPENDIXTO BANK GUARANTEE**

 

[*HeadedNotepaper of Beneficiary*]

 

To:             [                                                                            ]

 

From:         [                              ]

 

**Bank Guarantee Ref. No. - (**the “**Bank Guarantee**”)

 

We refer tothe Bank Guarantee.  Terms defined inthe Bank Guarantee and not otherwise defined herein bear the same meaningherein.

 

We certifythat:

 

(a)                            we haveprovided the Facility to the Borrower on the terms and conditions approved byyou at the time of issue of the Bank Guarantee;

 

(b)                           the termsof the Facility are the same as those prevailing at the time of issue of theBank Guarantee (or, to the extent that they are not, any amendments theretohave been approved by you);

 

(c)                            anaggregate amount (the “**Payment Amount**”) of • (comprising • of principaland • of interest and/or other charges) felldue for payment in • by • on • and remains due andunpaid at the date of this letter.

 

Accordingly, we hereby request paymentunder the Bank Guarantee of the Payment Amount.  Payment is to be made to our account (A/C No. •) with • at •.

 
| Yours faithfully                         |
|------------------------------------------|
|                                     |
|                                     |   |
| for and on behalf of [*the Beneficiary*] |

 

231

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**SCHEDULE 12**FORM OF LETTER OF CREDIT

 

To:          [Beneficiary]

 

Date: [                    ]

 

**Irrevocable Standby Letter of Credit No. [         ]**

 

This Letter of Credit is issued by [                            ], (the “**Issuer**”)at the request of [          ] in yourfavour on the following terms:

 

1.                                 TheIssuer shall not be obliged to make payments under this Letter of Creditexceeding in aggregate the maximum amount of [            ].  Any paymentunder this Letter of Credit shall be made in [*currency*] and shall reducethe Issuer’s liability to make payment under this Letter of Credit accordingly.

 

2.                                 ThisLetter of Credit shall expire at [      ] a.m./p.m., London time on [             ] (the “**Expiry Date**”).  The Issuer will have no liability in respect of any demanddelivered after such time [and a demand not accompanied by the informationmentioned in paragraph 3(b) below shall not be validly delivered].

 

3.                                 Subjectto paragraph 2 above, within five business days of receiving (a) your demand onthe Issuer [in the form set out in the Appendix to this Letter of Credit]specifying the amount claimed under this Letter of Credit and bearing anendorsement of the above Letter of Credit number and (b) [*details of any other documents requiredfrom the Beneficiary to be inserted (including a certificate verified as havingbeen signed by two authorised officers of the Beneficiary authorising deliveryof the demand)*], at [*details of Fronting Bank’s office to be inserted*]the Issuer agrees to pay to you in the currency specified in paragraph 1 above,subject to the maximum amount referred to in paragraph 1 above.

 

4.                                 Yourrights and the rights of the Issuer under this Letter of Credit may not beassigned or transferred.

 

5.                                 ThisLetter of Credit is subject to Uniform Customs and Practice for DocumentaryCredits (International Chamber of Commerce, Publication No. 500 - 1993).

 

6.                                 ThisLetter of Credit is governed by English law and the courts of England shallhave exclusive jurisdiction.

 
| Yours faithfully                               |
|------------------------------------------------|
|                                           |
|                                           |
|                                           |   |
| for and on behalf of*[name  of Fronting Bank*] |

 

232

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**SCHEDULE 13**MATERIAL COMPANIES AS AT SIGNING

 

Messer Griesheim GmbH

 

Messer Griesheim Industriegase GmbH

 

Messer UK Limited

 

Messer France S.A.

 

Messer Griesheim Industries, Inc.

 

Messer Hungarogaz Kft

 

MG de Mexico S.A. de C.V.

 

Messer Trinidad & Tobago Limited

 

Messer International GmbH

 

Messer Nederland B.V.

 

233

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**SCHEDULE 14**FORM OF AUDITOR’S REPORT

** **

**Private and confidential**

 

The Directors

MesserGriesheim GmbH (“**MGG**”)

and

The directors

DIOGENESVierte Vermögensverwaltungs Aktiengesellschaft (“**Newco 2**”)

 

Dear Sirs

 

In accordance with the terms of our engagement letterdated               ,we have reviewed the preparation of the compliance certificate (attached heretoand initialled by us for the purposes of identification) (the “**compliancecertificate**”) which is being provided pursuant to the seniorfacilities agreement dated • (the “**Facilities Agreement**”) made between, amongothers, CORNELIA Verwaltungsgesellschaft mbH, and the persons who becomeborrowers pursuant to the provisions of the Facilities Agreement, the personswho become guarantors pursuant to the provisions of the Facilities Agreement,Goldman Sachs International as Global Co-ordinator, Goldman Sachs Internationaland others as Joint Lead Arrangers, the persons named therein as Lenders, theagent and the security trustee.

 

*Responsibility*

 

The compliance certificate (*see definition above*), aswell as the accompanying audited financial statements of the Newco 2 Groupprepared in accordance with International Accounting Standards, have beenprepared by, and are the sole responsibility of, the directors of Newco 2. Ourresponsibility is to report on the results of our review.

 

A copy of the compliance certificate and theaccompanying financial statements is attached hereto and initialled by us forthe purpose of identification.

 

*Basis of opinion*

 

Our work included a review of the calculations of thefinancial covenants to assess if they have been calculated properly inaccordance with paragraphs 21.2 (b) and 22 of the Facilities Agreement and havebeen properly extracted from the audited accounts, certain specified records ofthe company, and audited IAS adjustment schedules.

 

We planned and performed our work so as to obtain allthe information and explanations which we considered necessary in order toprovide us with sufficient evidence to give reasonable assurance that thefinancial covenants have been properly calculated on the basis specified inparagraphs 21.2 (b) and 22 of the Facilities Agreement, so far as mattersmaterial to their preparation are concerned and the EBITDA and gross assetsnumbers for the purposes of Clause 23.30 (*Guarantor Group and Security Coverage*) ofthe Facilities Agreement and paragraphs (b) and (c) of the definition ofMaterial Companies in Clause 1.1 of the Facilities Agreement have been properlycalculated.

 

234

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These procedures did not constitute an audit of thefinancial statements, and consequently we express no opinion as to whether thefinancial statements present fairly the state of affairs of the Newco 2 Groupas at                       .

 

*Opinion*

 

In our opinion, the calculations in sections 2 and 3of the compliance certificate have been calculated in accordance withparagraphs 21.2 (b) and 22 of the Facilities Agreement. The Margins referred toin section 3 of the compliance certificate have been correctly extracted fromtables in paragraph 10.2 (a) and (b) of the Facilities Agreement on the basisof the information set out in section 2.

 

On the basis that the Security Parties are [list ofcompanies] and the Guarantors are [list] we confirm that in our opinion thecalculations in section 4 (a), (b), (c) and (d) of the compliance certificatehave been calculated in accordance with paragraph 22 of the FacilitiesAgreement.

 

In our opinion, the companies listed in section 4 (e)of the compliance certificate are the Material Companies as defined inparagraphs (b) and (c) of such definition of the Facilities Agreement.

 

*Restriction on use of report/Governing Law*

 

This report is exclusively for the information of theaddressees and for use solely in connection with matters relating to paragraphs21.2 (b), 22, 10.2 (a) and (b), 23.30 of the Facilities Agreement and thedefinition of Material Companies and is not to be copied, quoted or referredto, in whole or in part, in any other connection without out prior writtenconsent. For the avoidance of any doubt, this report may be circulated to theFinance Parties (as defined in the Facilities Agreement) in connection withthese paragraphs of the Facilities Agreement.

 

The terms of engagement for this report have beenestablished by the directors of Newco 2 and are based on the General Conditionsof Assignment for Wirtschaftsprüfer and Wirtschaftsprüfungsgesellschaften inthe version dated, July 1, 2000 ( a copy of which is attached hereto). We willnot accept responsibility to any other party to whom this report may be shownor who may acquire a copy of the report.

 

This report is governed by and construed in accordancewith the laws of the Federal Republic of Germany. Place of Jurisdiction for anydispute arising out to in connection with this letter shall be exclusively[Frankfurt am Main, Germany].

 

Yours faithfully

 

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**SCHEDULE 15**SECURITY PRINCIPLES

 

This Schedule sets out the principles upon which thetype and extent of the Security to be required from a proposed AdditionalObligor is to be decided upon.

 

1.                                 **Initial Obligors**

 

The Security to be provided by each of the InitialObligors incorporated in Germany, any state of the United States of America,England, France and the Netherlands (each such country or state being a “**KeyJurisdiction**”) and any Initial Obligor incorporated in Austria orLuxembourg has already been agreed upon and is to be as follows pursuant toSecurity Documents which are in agreed form:

 

(a)                                      **Germany**

 

Each of the Initial Obligors incorporated in Germanywill provide:

 

(i)        pledges by its direct Holding Company orHolding Companies over all of the shares in that Initial Obligor by way offirst ranking share pledges and (in favour of the Mezzanine Finance Parties)second ranking share pledges;

 

(ii)       an assignment of its receivables pursuantto a Global Assignment Agreement;

 

(iii)      a security transfer of its intellectualproperty rights pursuant to a Security Transfer of IP Rights;

 

(iv)      security over its bank accounts by way offirst ranking account pledges and (in favour of the Mezzanine Finance Parties)second ranking account pledges (it being noted that such pledge will rank behindany pledge in favour of the German account bank under its General BusinessConditions and that the pledgor has the obligation to use its reasonableendeavours to get the account bank to waive or subordinate its pledge);

 

(v)       security over its land pursuant to anotarial deed (creating  land charges)and a Security Purpose Agreement (relating to such land charges);

 

(vi)      security by way of transfer of collateralof its stock, machinery and inventory pursuant to a Transfer of Moveables; and

 

(vii)     in the case of MGG, security (governed byEnglish law) will be provided over a bank account opened by it with The ChaseManhattan Bank in London which is identified as a Prepayment Escrow Account andpursuant to which no amounts may be withdrawn other than as provided in Clause9 (Repayment and Cancellation).

 

(b)                                     **France**

 

Each of the Initial Obligors incorporated in Francewill provide:

 

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(i)                        pledges by its direct Holding Company or Holding Companies over allof the shares in that Initial Obligor;

 

(ii)                     a pledge over its bank accounts pursuant to a Bank Account Pledge.

 

(c)                                      **TheNetherlands**

 

Each of the Initial Obligors incorporated in TheNetherlands will provide:

 

(i)        pledges by its direct Holding Company orHolding Companies over all of the shares in that Initial Obligor;

 

(ii)       a pledge of its receivables;

 

(iii)      a pledge over its stock and assets;

 

(iv)      a pledge of its bank accounts;

 

(v)       a pledge of its intellectual propertyrights;

 

(vi)      (in the case of a Treasury Borrowerincorporated in The Netherlands, in addition to the above) security (governedby English law) over its Intra Group Loans,

 

save that if it is a Treasury Borrower it will onlyprovide the security referred to in paragraphs (i), (iv) and (vi) above.

 

(d)                                     **UnitedStates**

 

Each of the Initial Obligors incorporated in a stateof the United States of America will provide a pledge and security agreementcreating security over all of its assets (other than real property) and apledge by its direct Holding Company or Holding Companies over all of theshares in that Initial Obligor.

 

(e)                                      **England**

 

Each of the Initial Obligors incorporated in Englandwill provide a debenture creating fixed and floating charges over all of itsassets and a charge by its direct Holding Company or Holding Companies over allof the shares in that Initial Obligor.

 

(f)                                        **Austria**

 

Each of the Initial Obligors incorporated in Austriawill provide pledges by its direct Holding Company or Holding Companies overall of the shares in that Initial Obligor, so that MGG will pledge all of itsshares in Messer Austria GmbH.

 

(g)                                     **Luxembourg**

 

If a Treasury Borrower is incorporated in Luxembourgit will provide:

 

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(i)                        a pledge by its direct Holding Company over all the shares in suchTreasury Borrower;

 

(ii)                     a pledge of its receivables;

 

(iii)                  an account charge over its bank accounts; and

 

(iv)                 inaddition to or instead of (ii), security (governed by English law) over itsIntra-Group Loans.

 

(h)                                     **Securityover shares held by Initial Obligors**

 

The relevant Initial Obligors listed below shall alsoprovide pledges over all of the shares/partnership interests in the companiesindicated below.
| **Initial  Obligor**   |   | **Company  whose shares  pledged** |   | **Jurisdiction  of incorporation  and registered number (or  equivalent) of company whose  shares pledged**                     |
|------------------------|--------|------------------------------------|--------|---------------------------------------------------------------------------------------------------------------------------------|
| MGG                    |   | Messer AGS  GmbH                   |   | Germany,  registered in the *Handelsregister* (commercial register) of  the *Amtsgericht*  (local court of Hanau under, HRB6265 |
|                   |   |                               |   |                                                                                                                            |
| MGG                    |   | Messer Polska  Sp. zo.o.           |   | Poland                                                                                                                          |
|                   |   |                               |   |                                                                                                                            |
| Messer  Nederland B.V. |   | Messer  Belgium N.V.               |   | Belgium, BE  402.166.453                                                                                                        |
|                   |   |                               |   |                                                                                                                            |
| MGG                    |   | Messer  Hungarogaz Kft             |   | Hungary, Cg.  01-09-076414                                                                                                      |

 

2.                                 **Other Additional Obligors**

 

(a)                                      TheSecurity to be provided by any Additional Obligor which is not an InitialObligor but which is incorporated in a Key Jurisdiction shall consist of thesame type and extent of Security as provided by an Initial Obligor incorporatedin such Key Jurisdiction (to the extent relevant to such Additional Obligor) (including,for the avoidance of doubt, pledges from that Additional Obligor’s HoldingCompany or Holding Companies over all of the shares in that Additional Obligor)and shall as far as possible be provided pursuant to a Security Document orSecurity Documents on the same terms as those provided by such Initial Obligor.

 

(b)                                     Inregard to any Additional Obligor not falling within paragraphs 1 or 2(a) above,the presumption shall be that the only Security to be provided by suchAdditional Obligor is a pledge by its Holding Company or Holding Companies overall of the shares in that Additional Obligor. If the Agent determines (acting reasonably) that Security over all orany of its other assets can be 

 

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providedat relatively low cost (in terms of legal fees and other costs and expensesassociated with any such Security) which would provide some significant valuein terms of Security to the Finance Parties then, subject as provided below,the provision of such Security shall be a condition to such Additional Obligorbecoming an Additional Obligor if the Agent (acting on the instructions of theMajority Lenders) so requires.

 

3.                                 **Debtco**

 

The security to be provided by Debtco is specified inPart III of Schedule 2 (*Conditions Precedent*).

 

4.                                 **General Principles**

 

(a)                                      Inregard to any proposed Security to be provided by any Additional Obligor, dueregard shall be had to:

 

(i)        any risk that the directors of a companybeing asked to provide Security could be held to be in breach of applicablecompany or criminal law in providing such Security;

 

(ii)       the practicality and costs involved intaking any such Security; and

 

(iii)      the value of the proposed Security to theFinance Parties in light of the whole of the Security already provided to themat such time.

 

(b)                                     AnySecurity over any assets of an Additional Obligor shall (to the extent legallypossible) secure the obligations of such Additional Obligor under the FinanceDocuments and the Mezzanine Finance Documents and shall (to the extent legallypossible) create first priority Security over such assets.  All share pledge Security shall create firstpriority Security over the shares pledged.

 

(c)                                      Savewhere it is inappropriate under applicable law or in relation to the specificsecurity being provided, all Security shall only be enforceable upon theoccurrence of an Enforcement Event which is continuing.  An Enforcement Event is any of the eventslisted in paragraphs (a), (b), (c) or (e) of Clause 24.15 (*Acceleration*) of thisAgreement or paragraphs (a), (b) or (c) of Clause 22.14 of the MezzanineFacility Agreement.

 

(d)                                     Representationswill only relate to the creation of the Security, and undertakings additionalto those in this Agreement will only be included to the extent necessary underlocal law to create Security (such as a fixed charge) where such Undertakingswill not interfere with the normal running of the business.

 

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**SCHEDULE 16**DISPOSALPLAN

 

This Schedule sets out below the members of the MGGGroup, the Unconsolidated Subsidiaries of MGG and the minority interests andassets of the MGG Group and such Unconsolidated Subsidiaries which are intendedto be sold (either by way of share sale and/or by way of asset sale) pursuantto the disposal programme intended to be implemented after the Closing Date.

 
| **Country**                          |   | **Company/Asset**                                              |   | **MGG**%**shareholding/% of asset owned (direct or indirect)** |   |
|--------------------------------------|--------|----------------------------------------------------------------|--------|----------------------------------------------------------------|--------|
| **Consolidated Subsidiaries of MGG** |   |                                                           |   |                                                           |   |
| Argentina                            |   | Messer Argentina S.A.                                          |   | 99.63                                                          | %      |
| Australia                            |   | Messer Australia Pty. Ltd.                                     |   | 100                                                            | %      |
| Australia                            |   | Kingstream Steel Limited                                       |   | 3.58                                                           | %      |
| Brazil                               |   | Messer Griesheim do Brasil Ltda.                               |   | 99.99                                                          | %      |
| US/Canada                            |   | The Canadian Healthcare and US CO2 divisions of the  MGG Group |   | 100                                                            | %      |
| China                                |   | Sichuan Messer Gas Products Co. Ltd.                           |   | 100                                                            | %      |
| China                                |   | Hunan Xianggang Messer Gas Products Co. Ltd.                   |   | 55                                                             | %      |
| China                                |   | Messer Sunshine (Ningbo) Gas Products                          |   | 70                                                             | %      |
| China                                |   | Yunnan Messer Gas Products Co. Ltd.                            |   | 100                                                            | %      |
| China                                |   | Messer North China Industrial Gas Co., Ltd.                    |   | 100                                                            | %      |
| Germany                              |   | Messer Medical GmbH                                            |   | 100                                                            | %      |
| Guatemala                            |   | Messer de Centroamerica S.A.                                   |   | 50                                                             | %      |
| Guatemala                            |   | Carbox S.A.                                                    |   | 25                                                             | %      |
| Guatemala                            |   | Servigil S.A.                                                  |   | 100                                                            | %      |
| US                                   |   | MG Generon, Inc.                                               |   | 100                                                            | %      |
| Indonesia                            |   | PT Aneka Gas Industri                                          |   | 90                                                             | %      |
| China                                |   | SMC Asia Gas Systems Company Limited                           |   | 33.33                                                          | %      |

 

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| **Country**                    |   | **Company/Asset**                                |   | **MGG**%**shareholding/% of asset owned (direct or indirect)** |   |
|--------------------------------|--------|--------------------------------------------------|--------|----------------------------------------------------------------|--------|
| China                          |   | Ningbo Messer Donghai Carbon Dioxide Co. Ltd.    |   | 60                                                             | %      |
| Austria/Germany                |   | Messer Medical GmbH                              |   | 100                                                            | %      |
| Korea                          |   | Messer Korea Ltd.                                |   | 75                                                             | %      |
| Korea                          |   | Messer Myung Sin Gas Limited                     |   | 50                                                             | %      |
| Malaysia                       |   | Messer Malaysia Sdn Bhd                          |   | 100                                                            | %      |
| Malaysia                       |   | Secomex Manufacturing (M) Sdn Bhd                |   | 49                                                             | %      |
| Mexico                         |   | Messer Griesheim de Mexico S.A. de C.V.          |   | 99.99                                                          | %      |
| Peru                           |   | Messer Gases S.A.                                |   | 91.90                                                          | %      |
| Peru                           |   | Messer Gases del Peru S.A.C.                     |   | 99.99                                                          | %      |
| South Africa                   |   | FedGas (Pty) Ltd.                                |   | 100                                                            | %      |
| Taiwan                         |   | Messer Taiwan Co. Ltd.                           |   | 100                                                            | %      |
| Taiwan                         |   | Messer TPO Enterprise Co.  Ltd.             |   | 50                                                             | %      |
| Trinidad & Tobago          |   | Messer Trinidad & Tobago Limited             |   | 99.99                                                          | %      |
| Turkey                         |   | Messer Technik Gazlar Sanayi ve Ticaret Sti      |   | 80                                                             | %      |
| Turkey                         |   | Messer Aligaz Holding AS                         |   | 55                                                             | %      |
| US                             |   | MG Generon, Inc.                                 |   | 100                                                            | %      |
| Venezuela                      |   | Messer Gases S.A.                                |   | 100                                                            | %      |
| Zimbabwe                       |   | Messer Zimbabwe (Private) Limited                |   | 100                                                            | %      |
| **Non-Consolidated Companies** |   |
| China                          |   | Yunnan Zhanhua Messer Gas Products Co. Ltd.      |   | 60                                                             | %      |
| China                          |   | Messer International Trading (Shanghai) Co. Ltd. |   | 100                                                            | %      |
| Egypt                          |   | Messer Egypt S.A.E                               |   | 49.49                                                          | %      |
| Egypt                          |   | Messer Gases Dekheila Co S.A.E                   |   | 46.32                                                          | %      |

 

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| **Country**           |   | **Company/Asset**                         |   | **MGG**%**shareholding/% of asset owned (direct or indirect)** |   |
|-----------------------|--------|-------------------------------------------|--------|----------------------------------------------------------------|--------|
| Honduras              |   | Messer Honduras S.A. de C.V.              |   | 50                                                             | %      |
| India                 |   | Bombay Oxygen Corporation Limited         |   | 50% plus 1  share                                              |   |
| India                 |   | Goyal MG Gases Ltd.                       |   | 48.955                                                         | %      |
| Indonesia             |   | PT Aneka Messer Industrial Gases          |   | 65                                                             | %      |
| Nicaragua             |   | Messer de Nicaragua S.A.                  |   | 50                                                             | %      |
| Sri Lanka             |   | Messer Industrial Gases (Private) Limited |   | 51                                                             | %      |
| Thailand              |   | Messer Industrial Gases Thailand Co. Ltd. |   | 74.99                                                          | %      |
| Trinidad & Tobago |   | Neal and Massy Gas Products Ltd.          |   | 42.71                                                          | %      |
| Turkey                |   | Messer Aligaz Holding AS                  |   | 50                                                             | %      |
| Vietnam               |   | Messer Haiphong Industrial Gases Co. Ltd. |   | 67                                                             | %      |
| Egypt                 |   | Messer Gases Suez S.A.E.                  |   | 45                                                             | %      |
| Vietnam               |   | Messer Vietnam Industrial Gases Co. Ltd.  |   | 100                                                            | %      |

 

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**SCHEDULE 17**CENTRAL AMERICAN ENTITIES

 
| **Central American Entities**                         |   | **Relevant  Jurisdiction** |   | **MGG  Group  Shareholding** |   |
|-------------------------------------------------------|--------|----------------------------|--------|------------------------------|--------|
|                                                  |   |                       |   |                         |   |
| Messer  Griesheim de Mexico S.A. de C.V.              |   | Mexico                     |   | 99.99                        | %      |
|                                                  |   |                       |   |                         |   |
| Messer  de El Salvador S.A. de C.V.                   |   | El Salvador                |   | 50.00                        | %      |
|                                                  |   |                       |   |                         |   |
| Messer  de Centroamerica S.A.                         |   | Guatemala                  |   | 50.00                        | %      |
|                                                  |   |                       |   |                         |   |
| Carbox  S.A.                                          |   | Guatemala                  |   | 50.00                        | %      |
|                                                  |   |                       |   |                         |   |
| Servigil  S.A.                                        |   | Guatemala                  |   | 100                          | %      |
|                                                  |   |                       |   |                         |   |
| Messer  de Nicaragua S.A.                             |   | Nicaragua                  |   | 50.00                        | %      |
|                                                  |   |                       |   |                         |   |
| Carbox  de Nicaragua S.A.                             |   | Nicaragua                  |   | 25.00                        | %      |
|                                                  |   |                       |   |                         |   |
| Messer  de Honduras S.A. de C.V.                      |   | Honduras                   |   | 50.00                        | %      |
|                                                  |   |                       |   |                         |   |
| Compania  de Productos Atmosféricos S.A. de C.V. |   | Honduras                   |   | 50.00                        | %      |
|                                                  |   |                       |   |                         |   |
| Gases  Indústriales S.A. de C.V.                 |   | Honduras                   |   | 50.00                        | %      |
|                                                  |   |                       |   |                         |   |
| Coxgas  S.A. de C.V.                                  |   | Honduras                   |   | 50.00                        | %      |
|                                                  |   |                       |   |                         |   |
| Carbox  S.A. Honduras                                 |   | Honduras                   |   | 50.00                        | %      |
|                                                  |   |                       |   |                         |   |
| Greenbelt  Holdings Ltd.                              |   | British Virgin Islands     |   | 100.00                       | %      |

 

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**SIGNATURES**

 

**The Company**

 
| **CORNELIA VERWALTUNGSGESELLSCHAFT MBH** |
|------------------------------------------|
|                                     |   |
| By:                                      | WOLFGANG FINK |
|                                     |   |
| Address:                                 | c/o Allianz Capital Partners GmbH  Theresienstr. 1-7  8033 Munchen  Germany  Attention:    Stefan Sanne  and  c/o Goldman Sachs International  Peterborough Court  133 Fleet Street  London EC4A 2BB  United Kingdom  Attention:     Ulrika Werdelin |
|                                     |   |
| **The Arrangers**                        |
|                                     |   |
| **GOLDMAN SACHS INTERNATIONAL**          |
|                                     |   |
| By:                                      | SIMON PARRY-WINGFIELD |
|                                     |   |
| **BAYERISCHE HYPO- UND VEREINSBANK AG**  |
|                                     |   |
| By:                                      | MATTHIAS MAGNUS  CHRISTIAN FEDERSPIELER |
|                                     |   |
| **J.P. MORGAN PLC**                      |
|                                     |   |
| By:                                      | JAMES YU |
|                                     |   |
| **THE ROYAL BANK OF SCOTLAND PLC**       |
|                                     |   |
| By:                                      | GERD BIEDING |
|                                     |   |
|                                     | FRANK SCHAUZ |

 

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| **The Agent**                             |                                                                           |
|-------------------------------------------|--------------------------------------------------------------------------------|
|                                      |                                                                           |
| **CHASE MANHATTAN INTERNATIONAL LIMITED** |
|                                      |                                                                           |
| By:                                       | JAMES B. TREGER                                                                |
|                                      |                                                                           |
| Address:                                  | Trinity Tower  9 Thomas More Street  London E1 9YT  Fax: 0207-777-2360         |
|                                      |                                                                           |
| Attention:                                | Steve Clarke                                                                   |
|                                      |                                                                           |
| **The Security Trustee**                  |
|                                      |                                                                           |
| **CHASE MANHATTAN INTERNATIONAL LIMITED** |
|                                      |                                                                           |
| By:                                       | JAMES B. TREGER                                                                |
|                                      |                                                                           |
| Address:                                  | Trinity Tower  9 Thomas More Street  London E1 9YT  Fax: 0207-777-2360         |
|                                      |                                                                           |
| Attention:                                | Steve Clarke                                                                   |
|                                      |                                                                           |
| **The Lenders**                           |
|                                      |                                                                           |
| **GOLDMAN SACHS CREDIT PARTNERS, L.P.**   |
|                                      |                                                                           |
| By:                                       | SIMON PARRY-WINGFIELD                                                          |
|                                      |                                                                           |
| Facility Office:                          | Peterborough Court  133 Fleet Street  London EC4A 2BB                          |
|                                      |                                                                           |
| **BAYERISCHE HYPO- UND VEREINSBANK AG**   |
|                                      |                                                                           |
| By:                                       | CHRISTIAN FEDERSPIELER  MATTHIAS MAGNUS                                        |
|                                      |                                                                           |
| Facility Office:                          | Niederlassung Frankfurt  Mainzer Landstr. 23  60329 Frankfurt a. Main  Germany |
|                                           |                                                                                |  |

 

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| **THE CHASE MANHATTAN BANK**       |
|------------------------------------|
|                               |   |
| By:                                | JAMES B. TREGER |
|                               |   |
| Facility Office:                   | 125 London Wall  London  EC2Y 5AJ |
|                               |   |
| **THE ROYAL BANK OF SCOTLAND PLC** |
|                               |   |
| By:                                | FRANK SCHAUZ  GERD BIEDING |
|                               |   |
| Facility Office:                   | Rahmhofstrasse 2-4  D-60313 Frankfurt |

 

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